The 'Bermuda Triangle?' The cert pool and its influence over the Supreme Court's agenda.
Constitutional Commentary › Vol. 18 Nbr. 1, March 2001
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The 'Bermuda Triangle?' The cert pool and its influence over the Supreme Court's agenda.
It has been called a "monopoly," a "swamp," a "Leviathan," and even "the Bermuda Triangle." (1) The culprit: the Supreme Court's cert pool, the system of randomly assigning petitions for review to a single clerk for a recommendation regarding acceptance or denial of a case. Former Supreme Court clerk and solicitor general, Kenneth Starr, recently lamented that Supreme Court justices have abdicated their responsibility in screening cases for review and have ceded too much power to their clerks; cases worthy of the justices attention go into the cert pool, but they never come out. According to Starr, the cert pool "is at war with Justice Louis Brandeis' proud proclamation that the justices, unlike high government officials from the other branches, do their own work." Moreover, the cert pool "squander[s] a precious national resource--the time and energy of the justices themselves." Others agree that the cert pool is a "very dangerous proposition." (2) In 1998, USA Today conducted a five month study on the "effect and growing influence of law clerks," with several stories devoted to the influence of the cert pool. (3) In addition, at least one Justice has been publicly critical of this practice, Justice Stevens. (4) All of this has created a perception of the justices shirking their duties and clerks determining access to the nation's highest bench.
We actually know, however, very little about the role of the cert pool and the potential influence of clerks. (5) Until now, there have been no systematic assessments of the role of the cert pool in determining the Court's agenda. With data from the 1971-1974 and 1984-1985 Terms, this analysis focuses on two criticisms of the cert pool: (1) the cert pool largely determines case selection; and (2) the cert pool fosters the creation of a "cert-pool voting bloc" among the Justices in the pool. Surprisingly, the Court only took the action suggested by a cert-pool memo in approximately half th...See the full content of this document
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