Post by Anja Nieser on Oct 1, 2006 5:41:52 GMT -5
Roberts and Alito Stay in the Cert Pool
As they enter their 2nd term, the Supreme Court's two newest justices have
decided, at least temporarily, to stick with the Court's clerk-pooling
arrangement, despite concerns that it gives law clerks too much power.
In brief interviews in recent weeks, both Chief Justice John Roberts Jr.
and Justice Samuel Alito Jr. said they will stay in the "cert pool," as it
is called, for the current term.
Roberts said he will participate on a "year-to-year basis," and Alito said
the same; both indicated they are still weighing the issues that have been
raised. But Alito said that during his first term it was apparent to him
that certiorari petitions need to be read closely to determine if they are
worth granting -- suggesting some need for pooling the workload.
The arrangement, devised in 1972, radically changed what happens when a
petition for review or certiorari comes in to the Court. Instead of being
reviewed separately by nine clerks and/or nine justices, it is scrutinized
for the pool, presumably in greater depth, by one clerk, who then writes a
memo for all the justices in the pool.
The pool drew little criticism when only 4 or 5 justices participated. But
ever since the late Thurgood Marshall left the Court, in 1991, Justice
John Paul Stevens has been the only justice outside the pool, preferring
to have his clerks take a separate look at petitions, partly as a backstop
for the pool.
In a 1997 speech when he was in private practice, Roberts said he found
the pool "disquieting" in that it made clerks "a bit too significant" in
determining the Court's docket. During his confirmation hearings in
January, Alito said he was "aware of the issue" surrounding the pool. He
added: "We cannot delegate our judicial responsibility. But ... we need to
find ways, and we do find ways, of obtaining assistance from clerks and
staff, employees, so that we can deal with the large caseload that we
have."
In their new book on the Court's clerks, "Sorcerers' Apprentices," authors
Artemus Ward and David Weiden chart the history and impact of the pool. At
the same time the pool has increased the power of clerks in the
gatekeeping function, they say, it has made clerks less candid and more
timid in their recommendations. "The pool writers are going to be less
candid than they would be with their own justice," says Ward in an
interview. "It has a chilling effect."
The book also asserts that since the pool was created, "the number of
separate concurring and dissenting opinions issued by the justices
exploded." In other words, by lightening the load of petitions each clerk
has to read, the pool frees the clerks to write more opinions for their
justices. By the authors' estimate, each clerk in 1970 reviewed an average
of 634 petitions, while in 2000 that number was down to 271.
"This is something they know they will have to face sooner or later," says
Ward. "They may be just leaving well enough alone until Justice Stevens
leaves. Then the question will be whether his successor joins the pool."
(source: Legal Times)
As they enter their 2nd term, the Supreme Court's two newest justices have
decided, at least temporarily, to stick with the Court's clerk-pooling
arrangement, despite concerns that it gives law clerks too much power.
In brief interviews in recent weeks, both Chief Justice John Roberts Jr.
and Justice Samuel Alito Jr. said they will stay in the "cert pool," as it
is called, for the current term.
Roberts said he will participate on a "year-to-year basis," and Alito said
the same; both indicated they are still weighing the issues that have been
raised. But Alito said that during his first term it was apparent to him
that certiorari petitions need to be read closely to determine if they are
worth granting -- suggesting some need for pooling the workload.
The arrangement, devised in 1972, radically changed what happens when a
petition for review or certiorari comes in to the Court. Instead of being
reviewed separately by nine clerks and/or nine justices, it is scrutinized
for the pool, presumably in greater depth, by one clerk, who then writes a
memo for all the justices in the pool.
The pool drew little criticism when only 4 or 5 justices participated. But
ever since the late Thurgood Marshall left the Court, in 1991, Justice
John Paul Stevens has been the only justice outside the pool, preferring
to have his clerks take a separate look at petitions, partly as a backstop
for the pool.
In a 1997 speech when he was in private practice, Roberts said he found
the pool "disquieting" in that it made clerks "a bit too significant" in
determining the Court's docket. During his confirmation hearings in
January, Alito said he was "aware of the issue" surrounding the pool. He
added: "We cannot delegate our judicial responsibility. But ... we need to
find ways, and we do find ways, of obtaining assistance from clerks and
staff, employees, so that we can deal with the large caseload that we
have."
In their new book on the Court's clerks, "Sorcerers' Apprentices," authors
Artemus Ward and David Weiden chart the history and impact of the pool. At
the same time the pool has increased the power of clerks in the
gatekeeping function, they say, it has made clerks less candid and more
timid in their recommendations. "The pool writers are going to be less
candid than they would be with their own justice," says Ward in an
interview. "It has a chilling effect."
The book also asserts that since the pool was created, "the number of
separate concurring and dissenting opinions issued by the justices
exploded." In other words, by lightening the load of petitions each clerk
has to read, the pool frees the clerks to write more opinions for their
justices. By the authors' estimate, each clerk in 1970 reviewed an average
of 634 petitions, while in 2000 that number was down to 271.
"This is something they know they will have to face sooner or later," says
Ward. "They may be just leaving well enough alone until Justice Stevens
leaves. Then the question will be whether his successor joins the pool."
(source: Legal Times)