March 9, 2007
Fear of the DIG and the SCOTUS docket
I never get tired of SCOTUS docket and cert pool discussions, and so I read with interest this ABA Journal article entitled, "Clerks Avoid Getting Their DIGs In: They just say no to cert petitions, as the court's docket shrinks." Here are some interesting excerpts:
Forcing the court to look bad is not something that clerks want to do. And avoiding a DIG ruling is among the advice clerks pass on each summer as their replacements take their seats in the cert pool, a cooperative in which clerks for eight of the nine justices review the thousands of petitions asking for a hearing....
It's better, some former clerks say, to be seen as someone who rarely, if ever, recommends that cert petitions be granted. That, coupled with clerks’ lack of practice experience and the fact that all the justices except John Paul Stevens participate in the cert pool, could be one of the key reasons for the decline in the number of petitions granted — and the consequent shrinking of the Supreme Court’s case docket, according to a number of legal scholars....
Even if a [cert pool] memo recommends that cert be denied and the justices instead decide to grant it, [former clerks] say, it's less embarrassing than being seen as someone who recommends grants too often. And there's the notion that finding a reason to deny cert showcases a clerk's legal skills.
Some related posts on sentencing and the SCOTUS docket:
- Roberts, the cert pool, and sentencing jurisprudence
- More on Alito and the criminal docket
- My effort to help with the SCOTUS docket problem
- A capital waste of time?
- What SCOTUS should be doing
- Solving the SCOTUS docket mystery
March 9, 2007 at 11:02 AM | Permalink
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I read this article earlier in the week and two sentiments can immediately to mind: (1) since when should fear of making a mistake or looking foolish dictate such an important exercise (wimps); and (2) try doing some research. I can't help but cringe when I think not only of what great and historically important cases might have never been handed down if this mentality had prevailed in the past, but also what potentially landmark cases will never arise because of the same.
"The greatest mistake you can make in life is to be continually fearing you will make one." -- Elbert Hubbard
"A life spent making mistakes is not only more honorable, but more useful than a life spent doing nothing." -- George Bernard Shaw
Posted by: Shawn Davisson | Mar 9, 2007 11:31:31 AM
I got a better solution: hire a PR firm. The more press your case gets the more important it will seem, the less incentive there is to argue against granting cert.
If you are in jail or without funds, I would suggest that you GET the funds to hire a PR firm.
Posted by: S.cotus | Mar 9, 2007 3:38:34 PM
I found this article quite unpersuasive. I plan to blog about why later today.
Posted by: Orin Kerr | Mar 9, 2007 4:32:23 PM
I agree that the article is unpersuasive, for a number of reasons. Just some observations:
1. The Adarand case is a terrible example to point to as an illustration of a clerk not catching something. The opinion accompanying the DIG makes it pretty clear that the petitioner was trying to pull a fast one by arguing something different than its petition for cert focused on. There's no faulting the clerk for recommending a grant, when the petitioner itself is engaging in chicanery that is only later revealed.
2. At the same time, the Adarand case is an example of why I am unpersuaded that a supposed "shrinking" SCOTUS docket is the fault of the cert pool. To the casual observer, the Adarand case was a monumentally important one, a case that most commentators at the time would agreed, "The Court just HAS to take this case." And yet, as it turned out, there was an enormous vehicle problem -- one that the petitioner in fact tried to conceal. And that's what happens ALL THE TIME -- commentators just look at the importance of the issue, or the presence of a circuit split, without bothering to determine whether there is actually a gaping problem in granting cert in that particular case.
What the clerks do -- and do well -- is find those vehicle problems. It's the result of "doing some research," as an earlier commenter so snarkily put it. If you didn't have the clerks doing this preliminary research, and just left it to the Justices, I personally guarantee that while you might see an increase in the number of cases granted, you would see an astounding increase in the number of DIGs each Term, once the Justices realized that (a) they didn't have jurisdiction; (b) there was an alternative holding below; (c) they couldn't reach the question presented; (d) there were factual inconsistencies in the record; (e) Congress or an agency had acted in the meantime; (f) any of the many other reasons a case is not worthy of being granted, which the clerks routinely catch.
This became a bit of a rant; I apologize, but there is just so much uninformed commentary out there. Maybe I need my own blog, too.
Posted by: bill | Mar 11, 2007 11:58:30 PM