Cert Pool - Purpose and Operation

Purpose and Operation

Each year, the Supreme Court receives thousands of petitions for certiorari; in 2001 the number stood at approximately 7,500, and had risen to 8,241 by October Term 2007. The Court will ultimately grant approximately 80 to 100 of these petitions, in accordance with the rule of four. The workload of the court would make it difficult for each Justice to read each petition; instead, in days gone by, each Justice's law clerks would read the petitions and surrounding materials, and provide a short summary of the case, including a recommendation as to whether the Justice should vote to hear the case.

This situation changed in the early 1970s, at the instigation of Chief Justice Warren E. Burger. In Burger's view, particularly in light of the increasing caseload, it was redundant to have nine separate memoranda prepared for each petition and thus (over objections from Justice William Brennan) Burger and Associate Justices Lewis Powell, Byron White, Harry Blackmun and William Rehnquist created the cert pool. Today, all Justices except Justice Samuel Alito participate in the cert pool. Justice Alito withdrew from the pool procedure late in 2008.

The operation of the cert pool is as follows: Each participating Justice places his or her clerks in the pool. A copy of each petition received by the Court goes to the pool, is assigned to a random clerk from the pool, and that clerk then prepares and circulates a memo for all of the Justices participating in the pool. The writing law clerk may ask their Justice to call for a response to the petition, or any Justice may call for a response after the petition is circulated.

It tends to fall to the Chief Justice to "maintain" the pool when its workings go awry:

Rehnquist memos in the Blackmun files chide the clerks for submitting the memos too late and too long, and for leaving copies in the recycling bin — a major security breach. But a 1996 note to pool law clerks is perhaps the most intriguing, suggesting Rehnquist was concerned that clerks might be shading their summaries to reflect biases. Rehnquist reminded the clerks that cases are assigned to them for summarizing "on a random basis" partly "to avoid any temptation on the part of law clerks to select for themselves pool memos in cases with respect to which they might not be as neutral as is desirable." —

The same note went on to observe, with typical Rehnquist understatement, that "his sort of trade has the potential for undermining the policy of random assignment of memos, and is, to put it mildly, 'not favored.'"