The Supreme Court “Cert Pool” Criticized:

Tony Mauro has coverage of a recent panel on the cert pool in which Mauro reports that several very prominent practitioners criticized the Supreme Court’s existing “cert pool” on the ground that the Justices defer too much to the law clerk’s recommendation.

  I didn’t see the panel, so I can only comment on Mauro’s summary. But to the extent the argument is that a law clerk’s ultimate recommendations on whether to take or deny a case has a significant influence on what the Justices do, I tend to disagree. Pool memos play a tremendously important role in explaining whether a case is important, if an alleged split is real, and the like. At the same time, I tend to doubt the Justices pay a lot of attention to the ultimate recommendation of a law clerk on whether to take a case. It’s true that David Stras found a correlation, but I suspect the causal arrow is in the other direction: There is a connection between law clerk recommendations and what the Justices do because the law clerk recommendations are designed to try to predict what the Justices will do. That’s my sense, at least.

  As for why the number of cases the Court takes has dropped, I think changes in personnnel explains a lot. Two decades ago, a few of the Justices had much less strict standards for what cases to take. In particular, I understand that Justices White and Blackmun thought the Court should take a lot more cases, and they often voted to grant cert. When these Justices retired, the number of cases the Court took dropped.

  UPDATE: I have expanded the post a bit to clarify it, partially in response to Roy Englert’s comment.