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The cert pool is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari ("cert") to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E. Burger.
Contents
Purpose and operation
Each year, the Supreme Court receives thousands of petitions for certiorari; in 2001 the number stood at approximately 7,500,[1] and had risen to 8,241 by October Term 2007.[2] The Court will ultimately grant approximately 80 to 100 of these petitions,[3] 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.[4] Today, all Justices except Justice Samuel Alito participate in the cert pool.[5] Justice Alito withdrew from the pool procedure late in 2008.[6]
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 his or her Justice to call for a response to the petition, or any Justice may call for a response after the petition is circulated.[7]
It tends to fall to the Chief Justice to "maintain" the pool when its workings go awry. Chief Justice Rehnquist chastised clerks for a number of practices, including memos that were tardy, too long, biased, left in unsecure locations, or swapped between chambers.[8][9]
Criticisms
The cert pool remedies several problems, but creates others.