The "Bermuda Triangle?" The cert pool and its influence over the Supreme Court's agenda.

• Author: Palmer, Barbara

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 the cases that were granted review. Moreover, little evidence exists that the cert pool fostered the creation of a voting bloc that controlled the Court's docket. In fact, vote-cohesion between the justices in the cert pool actually declined over time. In very few cases, the cert-pool justices voted as a bloc against the non-cert pool justices. At best, evidence for the influence of the cert pool over the Court's agenda is quite limited. Cert-pool memos primarily serve as summaries for the justices, not as a screen.

1. THE CREATION OF THE CERT POOL

   The cert pool was implemented in October of 1972, but there is very little historical record of its creation. Justice Powell is usually credited with the idea of streamlining the process of case selection, (6) but Chief Justice Warren Burger also claimed that the cert pool was his idea. (7) Unfortunately, archival documentation sheds little light on the development of the cert pool. In fact, if Powell was the primary force behind the cert pool, his personal papers are decidedly lacking in any kind of written records or memoranda regarding its creation. (8)

   Although the genesis of the cert pool is unclear, the logic behind its creation is clear: to save time and increase efficiency. During the 1960's, the Court's docket had grown rapidly, reaching over 4000 cases by the early 1970s, and the process of disposing of cases was unique to each Justice's chamber. With the cert pool, rather than each chamber reviewing every petition that came to the Court, petitions would be randomly assigned in equal numbers to each chamber that participated in the pool. A clerk would then evaluate the petition and write a "cert-pool memo," ranging from two to twenty pages long. The memo had a standard format, beginning with a statement of the issues raised, followed by summaries of the facts of the case, the lower court opinion, and the contentions and arguments presented by the parties. At the end of the memo, the clerk would discuss reasons why the cert petition should or should not be granted. This memo would be circulated to all the chambers in the pool. Upon receiving the pool memo, another clerk would "mark up" the memo for his or her specific justice, providing further analysis or disagreeing with the pool memo's assessment.

   Unlike decisions on the merits and the circulation of opinion drafts, the Justices rarely debate the decision to grant review to a case. (9) The time pressures created by the docket simply prohibit meaningful discussion of all but a few noteworthy cases. Given this, clerks in the cert pool could conceivably have a great deal of influence over the Court's agenda. With Justices spending so little time reviewing each petition, those in the pool would almost have to rely on cert-pool recommendations. The Justices in the pool share an important source of information that the non-cert pool justices lack, the cert-pool memo. As a result, the Justices in the pool would probably tend to vote together, creating a "cert pool voting bloc." Thus, it does seem logical to expect that the clerks in the cert-pool would largely determine which cases were selected.

2. LOOKING AT CERT POOL MEMOS

   Empirically assessing the influence of the cert pool poses some significant challenges. Agreement between Justices' votes and clerk recommendations "does not prove that the justice[s] [are] being influenced; the law clerks might be merely following the guidelines established" by the Court; in other words, they might be using the same criteria that the Justices are using. (10) The Justices have specified particular criteria for screening cases, conflict among the circuits being one of the most important, (11) and clerks in the cert pool obviously look for cases with these characteristics. On the other hand, some correlation between Justices' votes and pool-memo recommendations must be shown as a precondition of any inferences regarding influence. If there is little to no association between pool-memo recommendations, the Justices' choices, and the Court's docket, the cert pool is not influencing case selection.

   The most substantial problem posed by any kind of study of the cert pool is the availability of data. Currently, Justice Lewis Powell's papers are the only public source of cert-pool memos. While Justice Powell did keep pool memos from cases the Court decided during his tenure, unfortunately he destroyed all his records on cases that were denied review. Consequently, it is impossible to assess how many times the Court voted to deny review when the cert-pool memo recommended that a case should be granted. It is also impossible to assess how many times the Court agreed when the cert-pool memo recommended that a case should be denied review. On the other hand, the vast majority of cases that come to the Court are "frivolous," particularly those filed in forma pauperis by prisoners. It stands to reason that, in i.f.p. cases in particular, the clerks and the justices would be in agreement regarding the denial of review, not because the clerks are exerting "influence" over the Justices in the cert pool, but because these are indeed cases that are not worthy of the Court's time. (12) At any rate, while the lack of data from cases denied review results in an incomplete picture of the influence of the cert pool, until we have better data, it is the best we can do.

   With these caveats, this analysis uses data from the cert-pool memos in the papers of Justice Lewis Powell from cases decided during the 1972-1974 Terms and the 1984-1985 Terms. (13) This allows us to assess possible changes that may have developed over time. It is conceivable that the influence of the cert pool was relatively limited during the first years of its operation given its novelty, but grew over time as the practice became institutionalized. During the 1972-1974 terms, the members of the cert pool were Justices White, Blackmun, Powell, Rehnquist and Chief Justice Burger. Justices Douglas, Brennan, Stewart and Marshall were not members. During the 1984-1985 terms, the members of the cert pool were Justices White, Blackmun, Powell, Rehnquist, Chief Justice Burger, joined by Justice...