Every June, the nine Justices finish their Term, often with a flurry of highly visible decisions, such as the five-to-four ruling upholding the Affordable Care Act on June 28. Then over the next days and weeks, the Justices head off for summer travel – teaching, vacationing, writing, lecturing, and attending bar association meetings and conferences of the federal appeals courts.

But ask Supreme Court law clerks how they spent their summer vacation, and the answer is easy: reading petitions for certiorari by the hundreds. Although the Court’s visibility goes on hiatus for nearly three months, there is still much work to be done not only working on the merits cases for next Term but also sifting through the petitions to find the small number that will make it to the Court’s calendar of cases to be argued and decided on the merits. That sifting is done initially by law clerks, and the process continues throughout the summer.

Almost all appeals to the Supreme Court take the form of a petition for a writ of certiorari, which asks the Justices to review the ruling of a lower court. The term “certiorari” is Latin and means to “make certain.”  Thus, a petition for certiorari – a “cert. petition” for short – is literally asking the Court to “make certain” that the lower court reached the correct result.

In recent years, the Court has received between 7500 and 8000 cert. petitions per year: from July 2011 to July 2012, for example, 7712 new petitions were filed. There were 7857 in the same period from July 2010 to July 2011 and 8159 the year before that.

The challenge in sorting through the petitions is that the Court is only deciding about seventy-five of these cases each Term – that is, about one percent of the total. So how does the Court identify the one percent to be decided and the ninety-nine percent to be turned down?

That is where the law clerks come in. Each of the nine Justices employs four law clerks, typically young lawyers who have been out of law school (generally, but not always, one of the nation’s most elite schools) for a year or two and have completed an appellate court clerkship and perhaps practiced for a year. These clerkships are highly prestigious and considered a career-making opportunity for the three dozen who are selected.

The high point for the law clerks is the chance to draft opinions for their Justices and to help shape the details of Supreme Court rulings. Conversely, screening the cert. petitions is generally the most tedious and least desirable part of the job for the law clerks. And in the summer, when the Court is in recess, screening the cert. petitions is pretty much a steady diet for the law clerks.

For about the last forty years, most of the Justices have had their clerks participate in a “cert. pool,” a labor-saving device in which each petition is read by one clerk for one of the Justices who participates in the pool ; that clerk then summarizes the case, and makes a recommendation about what the Court should do with the case, in a memo (the “cert. pool memo”) that is then shared with the other Justices who participate in the pool.

The idea for the pool is widely credited to the late Justice Lewis Powell, who served on the Court from 1972 to 1987. Justice Powell believed that it was highly inefficient and duplicative to have each Justice and his clerks review each petition, so he persuaded the Court to adopt the pool approach.

While the cert. pool has operated, there has always been at least one Justice who has opted not to participate and to instead screen the petitions through a separate review. At present, that is only Justice Samuel Alito. The late Justice William J. Brennan, Jr., who retired in 1990 and died in 1997, was the last Justice who actually reviewed most of the petitions himself, except during the summer months when his law clerks performed the task.

So what happens during the summer? The law clerks review and summarize upwards of 1500 petitions on which the Court will act when the Justices hold their first private Conference on the last Monday in September – this year, September 24. If recent practice is a guide, the following day the Justices will announce between eight and ten of those cases that they will review on the merits:  Tuesday, September 25. Virtually all of the remaining hundreds of petitions will be turned down, with that list announced when the Court Term officially begins on Monday, October 1.  (The Justices will likely reconsider a few of the petitions on the September 24 Conference again at their Conference the following week.)

What are the law clerks looking for when screening and summarizing the petitions? Rule 10 of the Supreme Court Rules emphasizes that the Justices are most interested in cases in which there is a conflict in the lower courts. This might be a case in which two or more federal appeals courts have interpreted the same provision of federal law to mean different things or in which state courts have interpreted federal law in conflict with one another or with a federal court. Rule 10 also suggests that the Justices are more likely to review cases in which there is “an important question of federal law” that has been decided by the lower courts and that merits a final word from the Justices.

To some extent, every review of a cert. petition involves some exercise of judgment by a law clerk. In the pool memo, the author is expected to summarize the facts and history of, as well as the issues in, the case.  Then, the law clerk must evaluate whether there is a genuine conflict in how the lower courts have interpreted the question presented by the case.  This second step often requires a fair amount of research by the law clerk, because the presence or absence of a circuit split plays such an important role in the Court’s decision-making process that almost all petitions assert that there is some sort of a conflict.  The challenge to the law clerk is to determine for the pool memo whether the conflict is real or whether the alleged differences in the lower court decisions instead actually turn on factual differences or may involve different provisions of the same law.

The petitions that claim a circuit conflict may involve less of a judgment call by the law clerks, however, than petitions claiming that the Court should resolve an important issue notwithstanding the absence of a conflict in the lower courts, as whether something is an important federal question that requires the Supreme Court to weigh in may often involve a substantial amount of subjective judgment.  Finally, the law clerk who writes the pool memo for a case must make a recommendation as to whether the Justices should grant or deny the case.

What happens to the pool memos varies from Justice to Justice. Some have their own clerks review the memos and annotate them with their own recommendations. Some use the pool memos in other ways.

By the time the Justices meet for their Conference, most of the petitions are a dead letter. That’s because before each Conference, the Chief Justice circulates a list, called the discuss list, which sets out the cases that, in his view, the Justices should actively discuss. Any Justice may add a case to the discuss list. But once the discuss list is complete, those are the only cases that will be considered at the Conference, and all other petitions go on what is known as the “dead list” – that is, they are presumptively denied, without any discussion or voting by the Justices.

For the cases considered at Conference, there is a longstanding tradition, dating back to 1925, that it takes four votes for the Court to agree to hear and decide a case.  Doing the math, that means that even if five members of the Court do not want to hear a case, the “rule of four” prevails, and the Court will still grant the petition for review.

Some critics of the cert. pool contend that the law clerks are more likely to recommend that the Court hear cases involving conflicts in the lower courts because those recommendations are easier to make and involve less exercise of individual discretion. These critics argue that the law clerks are too cautious and reluctant to recommend to the Justices that controversial cases be decided in the absence of a conflict in the lower courts. (Indeed, as one law professor who clerked at the Court recently explained, a clerk may well go the whole Term without recommending any grants.)  The result, critics say, is that the Court passes up important cases because the Justices rely too heavily on the screening by the law clerks. There is also the risk, critics say, that law clerks will use the process to pursue their own agendas.

But the Justices defend the cert. pool and the results it produces. In recent years, numerous Justices have responded to the criticisms, rejecting any suggestion that the Court is missing important issues or deciding the wrong cases. The Justices uniformly agree both that the law clerks play it straight in the cert. pool and that they do not pursue ideological agendas; indeed, they emphasize, the law clerks are warned against doing so by the Chief Justice when they first arrive at the Court for orientation. There has been no suggestion that the Justices are considering or have considered making any changes in this process.  With the Justices’ next Conference scheduled to take place in less than a month, we’ll get a better look at (and no doubt will continue to debate) the results of this process soon.

 

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Summer at the Court, SCOTUSblog (Aug. 27, 2012, 11:19 AM), http://www.scotusblog.com/2012/08/scotus-for-law-students-sponsored-by-bloomberg-law-summer-at-the-court/