My goodness, I should hope there would be a correlation. What would it say about the judgment of Supreme Court clerks if there weren't?

OK: Are you troubled by the large number of circuit splits that the Court lets fester for years?

If the justices don't follow the recommendations, why have the clerks make them? Put another way, would it help with fears about the pool if the clerks examined the issues and noted flaws, but didn't suggest an outcome?

Orin, the argument is a little more sophisticated than your summary of Tony's summary gives it credit for. The point is not that the Justices defer unthinkingly to the clerks' recommendations. Quite the contrary, David Stras's data set demonstrates that there is an extraordinarily high correlation between the NUMBER of grants recommended by the pool and the NUMBER of actual grants by the Justices, but shows that the Justices always grant far more petitions than the pool recommends, and that some recommended grants become denials and some recommended denials become grants.

The problem that I discussed at the conference is that there is evidence -- anecdotal, to be sure -- that some cases that should get the Justices' attention simply fall through the cracks with minimal attention. Some cases, in other words, are effectively "buried" by the cert. pool. Among the pieces of evidence that such a phenomenon may occur are some Justices' own protestations that they haven't told the clerks to tighten up the criteria, but that very few certworthy cases come to their attention. It's possible that the explanation is an actual drop in the number of certworthy cases, but it's also possible that the Justices don't know what they're not seeing, or at least not spending very much time on.

Roy,

Thanks for the clarification. I didn't mean to suggest that you all said the Jusices defer unthinkingly; only, as I put it, that they defer "too much."

I agree with your concern about individual cases falling through the cracks: If a law clerk doesn't do his or her job, that can happen. For that reason, I think it's important to have one or two Justices not in the pool. Such an arrangement makes it considerably less likely that will happen.

What about the Justices that don't participate in the cert pool? How would the clerks "bury" certworthy cases in that event?

Besides, the high correlation between the number of grants recommended by the pool and the number ultimately granted by the Justices is so blindingly obvious it staggers belief--there's a target number of cases available to be heard in a given term. With no insight into the process, my guess is that the cert pool clerks are told, you have to recommended roughly Y cases to be heard out of this pool of X thousand. The Justices tinker at the margins, and ultimately hear roughly Y cases, some of them having picked through recommendations for Y+10% by the cert pool.

This correlation is surprising? It's like saying, "you need to pick nine players for your baseball team out of these thousand" and being shocked that nine players are recommended and ultimately take the field.

Fewer cert grants might be have other explanations. The right-of-center justices might be disinclined to grant cert because philosophically they don’t like the idea of broad social problems and big issues being decided by unelected judges as opposed to legislatures. Analogously, the left-of-center justices might be disinclined to grant cert lest, being outvoted by the right-of-center justices, the “bad law” in a couple of circuits or states become “bad law” nationwide.

The right-of-center justices might be disinclined to grant cert because philosophically they don’t like the idea of broad social problems and big issues being decided by unelected judges as opposed to legislatures.

That doesn't sound like any SCOTUS justice I've ever heard of.

Analogously, the left-of-center justices might be disinclined to grant cert lest, being outvoted by the right-of-center justices, the “bad law” in a couple of circuits or states become “bad law” nationwide.

That one makes more sense, but doesn't explain why the right-of-center justices don't vote to grant cert. It only takes four votes.

Where one end of the Court wants vanilla, and the other end wants chocolate, and a couple of justices in between are torn between strawberry and Neapolitan, there's a strong incentive not to order ice cream just yet.

Sure. With an unstable middle, no ideological justice wants to risk losing.

I was responding to Orin's point, though. Orin seems to be suggesting that the Court should not grant cert. in more cases.

The kind of painstaking attention to detail that goes into a Court opinion today, versus 40 years ago or more, is on a whole different order from what one sees in those old opinions.

Very good point.

What painstaking attention? Wasn't there a case just recently in which the Court overlooked the existence of a federal law that undercut the assertions of the majority with regard to the death penalty for non-murder defendants?

The kind of painstaking attention to detail that goes into a Court opinion today, versus 40 years ago or more, is on a whole different order from what one sees in those old opinions.

That would be true if the Justices were doing the heavy lifting. Most SCOTUS cases are well-briefed - with heavy amicus support. So it's not like Justices need to pull 18 hour days. The detail is provided to them by the advocates.

For that reason, I think it's important to have one or two Justices not in the pool. Such an arrangement makes it considerably less likely that will happen.

It certainly helps, though the clerks outside the cert pool are going to have a considerably heavier workload than those who are part of the pool. They may not have enough time to dedicate to deeply examining cases that have slipped through the cracks in the pool. The obvious solution would seem to be to have multiple pools, so one justice's clerks don't have to review every cert. petition, yet every petition gets seen by more than one set of eyes.

Seth Waxman did, however, suggest multiple pools.

I saw that in Mauro's article. From the summary it sounded like Waxman was suggesting something more than just two pools though.

with heavy amicus support

"Support"? Sometimes. Amicus? Sometimes not.

Orin:
Slightly off topic, but how many justices must agree to grant cert and is this just a rule of the SCOTUS? If it is just a rule could the court then allow cert for state appeals only if all justices agree? What about majority rule in decision making is this a SCOTUS rule or act of congress? If SCOTUS rule could they then decide that the state only wins on appeal if all justices agree? And then only unanimous decisions would count as precedent. Just asking. Thanks.

Professor Browne -- The serious academic studies of the influence of the cert. pool do not depend on facile assumptions about how much scrutiny a case gets beyond the pool memo. Instead, they use the Blackmun papers (which cover, among other Terms, the Term in which you clerked for Justice White) to draw empirical conclusions about the relationship between pool recommendations and cert. grants. The empirical conclusions include an extraordinarily high correlation between the number of recommendations and the number of grants.

The next step is to assess the meaning of the correlation. Some, like David Stras and me, are inclined to the view -- not currently proven or disproven empirically -- that the clerks influence the Justices quite a bit. The influence is not exerted in a simple way, like the Justices always following the pool recommendation, but the hypothesis is that the entire process nevertheless has as its net result a strong influence by the clerks over the Justices' cert. decisions. The major opposing hypothesis -- espoused by Orin Kerr in this blog post, and by others -- is that the Justices cause the clerks to recommend numbers of grants that correlate highly with the actual number of grants, or, as Orin puts it, that the causation arrow runs in the other direction. Yet another hypothesis is that certworthiness is, in aggregate if not in each individual case, determinable to a relatively objective degree, and that the high correlation is the result of a decline in the number of certworthy cases over the period studied.

None of this depends on the simplistic -- and verifiably false -- hypothesis that the result of having a cert. pool is that only one set of eyes looks at each cert. petition. Rather, the hypothesis is that there is only one INTENSIVE look at each cert. petition, that the resources are not available for other clerks or Justices (in or outside the pool) to give much attention to each petition, and that the result is undue influence of the pool.

Roy Englert wrote:

Professor Browne -- The serious academic studies of the influence of the cert. pool do not depend on facile assumptions about how much scrutiny a case gets beyond the pool memo.

. . . .

[T]he hypothesis is that there is only one INTENSIVE look at each cert. petition, that the resources are not available for other clerks or Justices (in or outside the pool) to give much attention to each petition, and that the result is undue influence of the pool.

Perhaps I'm missing something, but aren't these two statements inconsistent?

I think my initial post was viewed as being critical of the ongoing research on this issue. It was not. I have not read the research and have no views as to its merit.

My post was largely directed at a recurring theme in the comments to Orin's original post that a single clerk in the pool could scuttle a cert petition because no one else would seriously look at it (or, in some comments, look at it at all). As I suggested in my earlier post, that was not my experience, although perhaps the procedures have changed. In my experience, pool memos were seriously looked at by clerks in other participating chambers and sometimes were the subject of substantial discussion among the clerks.