Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions

• DOI: http://doi.org/10.1111/lasr.12165
• Date: 01 December 2015
• Published date: 01 December 2015

Seasonal Affective Disorder: Clerk Training and the

Success of Supreme Court Certiorari Petitions

William D. Blake

Hans J. Hacker

Shon R. Hopwood

We investigate why the Supreme Court grants a smaller percentageof cases at

the first conference of each term compared to other conferences. According

to received wisdom, Supreme Court law clerks are overly cautious at the

beginning of their tenure because they receive only a brief amount of training.

Reputational concerns motivate clerks to provide fewer recommendations to

grant review in cert. pool memos written over the summer months. Using a

random sample of petitions from the Blackmun Archives, we code case char-

acteristics, clerk recommendation, and the Court’s decision on cert. Nearest

neighbor matching suggests clerks are 36 percent less likely to recommend

grants in their early cert. pool memos. Because of this temporal discrepancy,

petitions arriving over the summer have a 16 percent worse chance of being

granted by the Court. This seasonal variation in access to the Court’s docket

imposes a legally irrelevant burden on litigants who have little control over

the timing of their appeal.

“This Broth of the Certiorari Process”

1

Members of the Supreme Court bar have complained that

petitions for certiorari review filed in the summer months have a

much lower grant rate than at other times during the term.

We dedicate this article to H.W. Perry, who has inspired in each of us a love for the

Supreme Court of the United States as an institution. The authors e xpress our gratitude to

Ryan Black and the three anonymous reviewers for their helpful comments. We also thank

our research assistants who were most helpful in data gathering efforts–Ryan Mullenix,

Ann Marie Metzner Hopwood, Jessicah Rauch, Nikki Clark, and Bryant Moy. This project

was funded through a Faculty Association Research Award grant from Arkansas State Uni-

versity. Previous versions of this paper were presented at the 2013 Annual Meeting of the

Midwest Political Science Association and the 2014 Annual Meeting of the Southwestern

Social Science Association.

Please direct all correspondence to William D. Blake, Department of Political Science,

University of Maryland, Baltimore County, 1000 Hilltop Cir., PUP 312, Baltimore, MD,

21250; e-mail: wblake@umbc.edu.

1

This quotation comes from a remark made by an anonymous Supreme Court Justice

to H.W. Perry (1991: 1): “It is really hard to know what makes up this broth of the cert.

process.”

Law & Society Review, Volume 49, Number 4 (2015)

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C2015 Law and Society Association. All rights reserved.

973

When the justices meet for the first time for the upcoming Octo-

ber Term, sometime at the end of September, they dispose of all

certiorari petitions that have arrived during the summer months.

Former Supreme Court clerk, Edward Lazarus (2005: 29) has

characterized this meeting, appropriately called the Long Confer-

ence, as a “single marathon session.” On average, during the

Roberts Court era the Court has disposed of more than 1,800

petitions at the Long Conference, and the proportion of grants

to denials appears lower than at any other point during a term.

In their qualitative analysis, Cordray and Cordray (2004: 210)

attribute this difference in grant rates to the “great mass of

petitions” considered at the Long Conference exerting a

“numbing effect on the Justices.”

We endeavor to find a more empirically satisfying explanation

of this behavior by examining the actors whose recommendation

often makes or breaks a petition–Supreme Court law clerks. For

each petition, the justices rely on one clerk’s memo, which sum-

marizes elements of the case and provides a recommendation as

to whether the Court should grant review. The law clerks who

handle the massive number of summer cert. petitions are new to

their posts, having received only a brief amount of training from

the outgoing clerks. Another former clerk, Jeffrey Fisher (as cited

in Wolf 2013), described the behavioral incentives clerks initially

encounter: “New law clerks know that the way to play it safe is

almost always to recommend a denial.” Boskey (2012) traces the

clerk’s lack of confidence in making grant recommendations–

what we refer to below as grant-averse behavior–back to clerks

working for Chief Justice Stone in the 1940’s, long before the

creation of the cert. pool. If these anecdotes are true, they raise

serious normative questions about the fairness of the Supreme

Court’s procedures. Given the already low probability of receiv-

ing certiorari review, access to the Court’s docket should not

depend on what month a cert. petition reaches the Court’s hands.

In this article, we provide a theoretical advancement in the

understanding of the cert. pool and document its meaningful and

normatively troubling consequences for some litigants.

The study of law clerks has explored various avenues of influ-

ence from authoring opinions and preparing justices for oral

argument (Ward and Weiden 2006), to the ideological congruity

between clerks and justices (Baum and Ditslear 2010; Ditslear

and Baum 2001; but see Kromphardt 2015), to the influence of

clerk ideology on the decisions of the justice who hired her

(Brenner and Palmer 1990; Peppers and Zorn 2008). Another

line of literature examines the clerks’ role in reviewing cert. peti-

tions. The quantitative studies that followed Perry’s (1991)

account of certiorari behavior argued that a justice votes to grant

974 Seasonal Affective Disorder