"I'll Fight It All The Way To The Supreme Court... If The Law Clerks Let Me

Justice Alito Joins Cert Pool Party

The only way a case gets before the SCOTUS is with the approval of some powerful law clerks. Most of us do not realize this, but it is often not the Justices themselves that make the decision to not grant certiorari (an approval to hear the case before the Court), but the pool of law clerks that 8 or 9 justices use to screen certiorari petitions and write up the pros and cons of hearing the case. The problem is that it is the ideological views of the particular clerk assigned the petition for review that gets to write the case up. Of course, if more than one or two clerks got a crack at each case, then perhaps there would be a chance for a balanced review of each case... but that is not how it works.

Gone are the chances that a small, hand-written note could ever make it to the level of a SCOTUS challenge of the law, as was the case in Gideon v. Wainright, 372 US 335 (1963) (See the Henry Fonda movie, "Gideon's Trumpet"), which set the right to counsel that is now part of the Miranda warnign that all police officers must alert suspects to as they are being placed under arrest.

Supreme Court Justice Samuel Alito Jr., like his predecessor Sandra Day O'Connor, has joined the justices' so-called "cert pool" ­-- leaving John Paul Stevens once again as the only justice not participating in the controversial case-pooling arrangement. Alito confirmed his action in response to a query from Legal Times.

Justices in the pool divide up incoming certiorari petitions among their law clerks, so that one clerk produces a memorandum on each case that is then shared with all the justices in the pool. The pool, created in 1972 to cut down on duplication and cope with increased caseload, was not controversial until gradually, more and more justices joined it. With eight of nine justices participating, critics have said the arrangement gives too much power to individual clerks to determine the fate of incoming cases.

"I am concerned about the fact that only Justice Stevens has opted out at the present time," says Florida International University law professor Thomas Baker, co-author of a text on appellate courts. "Right now, an individual law clerk has the most influence over the cert decision to grant or deny review. That clerk is often one year out of law school."

Alito was noncommittal when he was asked about the cert pool at his confirmation hearing in January, though he said he was "aware of the issue" and would talk to other justices about it once confirmed. "I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy case load and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases," Alito said at the Jan. 10 hearing. "We cannot delegate our judicial responsibility. But we do need to call on -- we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees so that we can deal with the large case load that we have."

Fellow newcomer and chief justice John Roberts Jr. in a speech in 1997 said he found the practice "disquieting" ­-- a common view among fellow Court practitioners who must explain to high-paying clients why it is likely that their petition was turned down with only one justice, or even no justices, actually reading it. But Roberts joined the pool anyway, as has Alito -­- at least for now.

"It's interesting to me that whatever qualms the justices have about reliance on a single clerk's memo, those qualms aren't sufficient to keep justices from joining and remaining in the pool," said Ohio State University political scientist and Court scholar Lawrence Baum. "I think the justices -- especially the more liberal justices -- will have to face their qualms more directly when Justice Stevens leaves the Court."

Stevens himself does not read all the petitions, since he divides them up with his own clerks. But he has felt some duty to remain outside the pool to serve as a check or backstop to avoid mistakes.

Informed that Alito has joined the pool, Roanoke College professor Todd Peppers, author of a forthcoming book on law clerks, says the news probably foreshadows other opinion-writing practices Alito will adopt. "I predict that he will call upon his clerks to prepare the first drafts of majority, concurring and dissenting opinions," Peppers said, "a practice followed by all Rehnquist Court justices except for Justice Stevens, whose clerkship employment practices were undoubtedly influenced by his own clerkship with former Supreme Court Justice Wiley Rutledge."