For years, close observers of the Supreme Court’s work have speculated about the reasons why the Justices decide so few cases each Term. No one has been able to say, with certainty, why the Court has shaved its caseload down to half of its size of a quarter-century ago.
One reason often given — though with no foundation beneath it — was that the Justices were simply satisfied that lower courts were getting their decisions right more often, so there was less need for the Justices to step in as often. Another suggestion, equally unsupported, was that the Justices simply found comparatively little that interested them in what the lower courts were doing, so they held back. Still another, quite fanciful, idea was that the Justices actually liked working fewer hours, including having afernoons off on hearing days.
The issue of the shrunken caseload is getting some new attention, with the arrival of Chief Justice John G. Roberts, Jr. During his nomination hearings, he told the Senate Judiciary Committee that the Court could be granting more cases, and perhaps should be. It was an idea he seemed prepared to explore once he got on the bench.
Looking into the issue, Roberts almost certainly would not credit any of the reasons given above. But another explanation has been advanced, and it is the most credible one. That is that the declining grants are due to the functioning of the Court’s “cert pool” — more formally, the “certiorari pool.” That idea has been embraced by more informed observers, such as former law clerks who know well how that “pool” operates. Its most salient characteristic: recommending against granting review.
The “pool” has been operating for years. At one time or another, many of the Justices decided to take part. During the years of the “Rehnquist Court,” the pool became the favored option: eight of the nine Justices relied on the pool (all but Justice John Paul Stevens). It thus has been at its peak of use.
Here is how it works: instead of each Justice’s chambers examining every new petition to decide whether to vote to grant or deny, petitions are handed first to the “cert pool,” leading to a single memo, written by a single clerk, recommending for or against a grant of cert. That single memo goes to every chambers represented in the pool. The Justices still exercise the voting power, of course, but the memoes have constituted their first, and most comprehensive, look at a case’s worthiness for review. Undoubtedly, that saved a lot of time, but the pool has developed defects.
What pool memoes lacked, of course, was particularized advice to a single Justice. Examining clerk’s cert memoes from the days before the pool, one could find suggestions that fit well into an individual Justice’s view of the law, or past writings. The memo was not homogenized, as it would have to be if it had gone to several different audiences.
From the “cert pool,” however, a memo does become homogenized, to a substantial degree. And that has been particularly true since the pool has grown so popular: a memo written for an audience of eight thus reads very differently from one aimed at an audience of one. It turns the certiorari process into a collective, not an individual, practice.
Former law clerks have said there is another characteristic that the pool has developed. A culture has grown up around it, they say, in which a grant of review is recommended only if it is practically an obvious grant. Recommending a grant, and then having the Court deny review, has become an embarrassing thing for the clerk involved. As a result, the tendency is to put the emphasis on the negative. As everyone who reads more than a few cert petitions knows well, almost any petition could contain within it good reasons to deny review. Generally speaking, there are few, if any, sure grants. Thus, it is easy to suggest, plausibly, that cert be denied, and that is what has happened.
The “cert pool,” however, seems deeply embedded in the Court’s current practices, so breaking it up is not a realistic option. The new Chief Justice, as Supreme Court reporter Tony Mauro points out in an article that can be found here, has been somewhat skeptical of the pool’s operation and, as Tony further notes, has expressed some ideas for changing it.
But, for the time being, there will be no change. Supreme Court public information officer Kathleen L. Arberg, asked by reporters Friday what the Chief Justice would do regarding the pool, responded this way: “The Chief Justice is participating in the cert pool, at least for the first year.”
While there was no expansion on that statement, it sounds like an experiment. When the 2006 Term opens next October, the Chief Justice will have seen how the pool operates, will be in a position to test the thesis that it is a factor in the shrunken caseload, and can come up with alternative approaches.