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May 1, 2017

Justice Gorsuch refusing to jump into the cert pool

A decade or so ago after the Blakely and Booker rulings created extraordinary churn in lower courts, I used to think a lot about how the US Supreme Court set its docket. (More specifically, as posts here and here highlight, I used to complain a lot about SCOTUS taking up so many capital sentencing cases and so relatively few non-capital sentencing cases.)  In the context of thinking about these SCOTUS docket issues, and in writing up a little recent article on the topic, I came to the tentative conclusion that the modern development of the "cert pool," which has come to be used by nearly all the Justices to consider which cases to review on the merits, was not such a healthy development.

I provide all this background as a set up this interesting SCOTUS news from inside the Beltway via the New York Times: "Gorsuch, in Sign of Independence, Is Out of Supreme Court’s Clerical Pool." Here is how the article gets started:

In an early sign of Justice Neil M. Gorsuch’s independence and work ethic, he has decided not to join a labor pool at the Supreme Court in which justices share their law clerks in an effort to streamline decisions about which cases to hear.

Justice Gorsuch joined the court last month. His decision not to participate in the pool was confirmed by Kathleen L. Arberg, the court’s public information officer. The only other member of the court who is not part of the arrangement is Justice Samuel A. Alito Jr.

Justices in the pool receive a common “pool memo” on each petition seeking Supreme Court review — more formally, “petition for certiorari” — from a single law clerk. The memo analyzes the petition and makes a recommendation about whether it should be granted.

As a law clerk to Justices Byron R. White and Anthony M. Kennedy in 1993 and 1994, a young Mr. Gorsuch wrote quite a few such memos.

Justices who do not participate, by contrast, have their law clerks review all of the roughly 7,000 petitions filed each year, looking for the 75 or so worthy of the court’s attention.

The pool has been criticized for giving too much power to law clerks and for contributing to the court’s shrinking docket. For almost two decades until 2008, only Justice John Paul Stevens, who retired in 2010, stayed out of the pool. He said it had caused “the lessening of the docket.”

“You stick your neck out as a clerk when you recommend to grant a case,” he told USA Today. “The risk-averse thing to do is to recommend not to take a case.”

Some scholars have traced the decline of the Supreme Court docket to the pool. In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many.

A few posts from nearly a decade ago on SCOTUS docket issues:

May 1, 2017 at 07:05 PM | Permalink


Which is better, 75 or 150 instances of lawbreaking, selection by Harvard Law clerk assholes, and of appallingly terrible and tyrannical, big government decisions by Blame America First, Hate America Most Ivy criminal cult drones, for our lawyer besieged nation? These people are so stupid, they do not even know they are stupid. They think they are smarter and better than everyone else. Lawyers are the stupidest people in our country. These Supreme Court assholes are the stupidest of all lawyers. They are the stupidest people in our nation. Life skills class students, learning to eat with a spoon, have more common sense than these calamitous assholes.

Posted by: David Behar | May 1, 2017 10:08:39 PM

Low life, dirtbag, Harvard Law scum, uber weasel Justice Kennedy may retire.


He should be told, he will be impeached if he fails to do so. This is the guy that legally immunized butt fucking. The latter is the cause of the mass murder of 40 million people around the world. He is one of the greatest mass murderers in human history.

Posted by: David Behar | May 2, 2017 6:43:01 AM

somebody forgot to take his meds this morning. I wonder who.

Posted by: James | May 2, 2017 7:19:57 AM

"Some scholars have traced the decline of the Supreme Court docket to the pool. In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many."

The pool was put in place in the 1970s. The docket was limited for a variety of reasons, including reduction of mandatory appeals.

Posted by: Joe | May 2, 2017 9:29:51 AM

David, your two comments here are examples of the uncouth rants that prompt many to tune out and complain about your use of this forum. As you know, I am disinclined to ban you, but I am persistently annoyed that you must include coarse lawyer-bashing rants with basic commentary. Have you considered the possibility that your first comment might have had more impact if you just said, say, "Because I dislike nearly all they do, I would rather see SCOTUS decide only 75 rather than 150 cases each year."

In short, please try a little harder, David, to mind your manners.

Posted by: Doug B. | May 2, 2017 9:31:27 AM

For instance, Stevens was out of the pool, but recall him saying he was okay with the reduction of the docket. Stevens repeatedly on record opposed them deciding various cases, including overturning state court opinions protecting constitutional rights in ways the majority held was too generous. He also opposed deciding the question on certain non-criminal issues as well.

Anyway, Gorsuch being a clerk who took part in the pool is probably notable. Also, maybe, that Alito isn't a member. Ideologically, think Gorsuch leans that way, and so far, he like Alito is active/strict in questioning.

Posted by: Joe | May 2, 2017 10:53:30 AM

This rant by Supremacy Claus is so over the top, I am speechless. About all I can do is shake my head in disbelief.


Posted by: bruce cunningham | May 2, 2017 11:42:23 AM

Doug. Thank you for your kind advice about being more diplomatic, less candid. I will try to do better. It is likely that internet rudeness has a high recidivism rate, and deterrence is not likely to work. But, do not give up on your worthy rehabilitation efforts.

That being said, you can serve your readers by explaining what is up with those Harvard Law grads. You know many more than I do, and can give more insider information. They are quite different from the rest of us.

I assume that most had close to a 4.0 average in college. They reached that achievement by studying 80 hours a week for 16 years. Do you think that makes them different from other people? Others may have had more street experience, or more frustration in life, or more suffering. Others may have been the victims of crime, going out of the house once in a while.

Even if ultra-conservative, they always end up supporting a growth in the power and control of government over the assets of others. Scalia was conservative, yet led the charge against mandatory sentencing guidelines.

It was also Scalia that stated that members of a jury pool may do better than the lawyers nominated to be Justices of the Supreme Court. He came to my school for an interview. I was prevented from discussing Scholasticism, St Thomas Aquinas, or the notebooks of Henry of Bratton, with this devout and knowledgeable Catholic. Bratton means Brittany, a French province. So all this pointless lawyer proceduralism is not even English. It is French methodology. It was far more advanced than today. Any lawyer allowing his case to reach substance felt humiliated. They could all do a Roberts, but in three languages, in fluent English, fluent French and fluent Latin. Is that OK?

Posted by: David Behar | May 2, 2017 12:58:15 PM

Bruce. Article I Section 1 gives lawmaking power to a Congress. Judicial review is prohibited by it. It is not covered in any way by Article III. If you know something about the subject that I do not, please feel free to share it with the class. I notice that Doug did not chide you for your personal insult and attack. You lawyers like things the way they are. You are doing well. The rest of us are not doing well.

Posted by: David Behar | May 2, 2017 1:02:34 PM

My thought, on reading the article in the Times today, was that Gorsuch felt that the clerks in the pool could not be relied on to spot cases in which he and the Court could further a conservative, business-oriented agenda.

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