Cert Pool, Elena Kagan, SCOTUS, Supreme Court, Supreme Court Clerks

Kagan and the Cert Pool: Should She Jump In?

The confirmation hearings for Solicitor General Elena Kagan, nominated to replace Justice John Paul Stevens on the Supreme Court, are currently scheduled to start on Monday, June 28. We will, of course, offer extensive coverage, including some liveblogging.

But most observers expect little confirmation drama — which makes sense. Elena Kagan is an eminently qualified nominee who has over the years kept herself out of trouble, personal or political. She enjoys support from a number of notable conservatives, such as Miguel Estrada and former judge Michael McConnell (both of them possible SCOTUS nominees in a Republican administration).

Just today, Vanderbilt law professor Brian Fitzpatrick — a former law clerk to Justice Scalia and a former counsel to Senator John Cornyn (R-TX) — issued an enthusiastic endorsement (PDF) of Kagan, praising her as “a person of utmost integrity, extraordinary legal talent, and relentless generosity.” Such sentiments have been heard from many conservative corners.

So, with Lady Kaga’s confirmation more or less assured, let’s start thinking about what we can expect from a Justice Elena Kagan. Specifically, how will she handle petitions for certiorari, the requests filed by litigants who want the Court to hear their cases?

In other words: Will Justice Kagan plunge into the cert pool? And should she?

Last month, Columbia law professor Jamal Greene raised the cert pool issue on the NYT’s Room for Debate blog. He began by supplying some background on “the pool”:

One of the most important (and least sexy) ways in which a future Justice Kagan could influence the Supreme Court is in her decision whether to join the “cert pool.” Unlike a lower court, the Supreme Court generally chooses which cases it decides to hear. Currently, the clerks for seven of the nine Justices “pool” the applications for certiorari and share a single memo for each petition, with the work split among the clerks.

The cert pool has been criticized (correctly, in my view) for discouraging the clerks from sticking their necks out to call the Justices’ attention to certain petitions. Justice Stevens never joined the pool, which means that each and every one of the 8,000-plus petitions the Court receives every year is read by someone in his chambers.

Professor Greene — who didn’t do pool memos as a clerk, since he clerked for Justice Stevens — argued in favor of Justice Kagan staying out of the pool:

If Elena Kagan does not follow Justice Stevens’s example, it would leave Justice Alito as the only justice whose clerks read every petition. That would upset what I regard as a healthy liberal-conservative balance among the chambers not participating. Even if a Justice Kagan were identical to Justice Stevens on every decision, she could still have an important impact on which cases are heard.

Of course, one might wonder: Why does Kagan have to shoulder the burden of being the liberal cert slave? Justice Sonia Sotomayor ain’t exactly hígado picado.

Shortly after Justice Sotomayor joined the high court, she announced her intention to join the pool for the time being, to get a sense of its operation before making a more long-term decision. Last month, we reached out to the Court to see if Justice Sotomayor had reached a more lasting decision about cert pool participation. The Court’s Public Information Office informed us: “The Justice currently participates in the cert pool and hasn’t made a decision regarding future participation.”

So let’s turn to Justice Kagan — who has firsthand familiarity with reviewing cert petitions, dating back to her time as a law clerk to Justice Thurgood Marshall (October Term 1987). Will she join the cert pool?

(As far as we know, Kagan hasn’t telegraphed her intentions. Hopefully she’ll be asked about it at her hearings, as Justice Sotomayor was.)

The Divine Miss K didn’t write pool memos as a law clerk; her boss, Justice Marshall, did not participate in the pool. Her experience reviewing cert petitions for a justice who wasn’t in the pool will surely inform Kagan’s approach to participating herself. If she thought it worked well in the Marshall chambers, perhaps Kagan will stay out of the pool — a decision that could also be viewed as a tribute of sorts to her former boss and his way of doing things. On the other hand, if she thought it didn’t work well — e.g., if it was a waste of valuable clerk time that could have been spent elsewhere, or if she got bored to tears as a clerk reviewing worthless certs — perhaps she will plunge into the pool as a justice.

If we had to guess, we’d probably predict that Kagan will join the pool, at least “for the time being” (a la Sotomayor). Since she never swam in the pool as a law clerk, Kagan could also use the Sotomayor justification of “I’m dipping my toe in the water to see how it feels.” And Kagan isn’t a radical; she seems more comfortable working for change within, rather than outside, powerful institutions (like Harvard Law School). The cert pool is one such institution.

And it’s an institution that could arguably use some reform from within. One of the experts we reached out to for comment on Kagan and the cert pool — Carolyn Shapiro, a law professor at Chicago-Kent and a former SCOTUS clerk herself (OT 1996) — suggests this approach, in a very interesting blog post. First Professor Shapiro weighs the pros and cons of pool participation:

[S]hould Justice Kagan join the pool? On this point, there are good arguments going both ways. On the one hand, there are a colossal number of cert petitions filed each year (more than 7700 in the 2008 Term, which is actually a decrease from recent years), and reviewing all of them in one chambers will be extraordinarily time-consuming. Especially in a justice’s first term, that may not be the best use of her (or her law clerks’) time.

On the other hand, it is undoubtedly valuable for each cert petition to be reviewed by more than a single law clerk. There are a variety of ways to ensure that, of course – including creating two parallel cert pools, or assigning each petition to two law clerks within the existing pool.

Shapiro then spells out how a Justice Kagan could be a force for reform from within the pool:

[A] Justice Kagan could be quite influential on the cert process if she does join the pool. She could, for example, review cert memos with a particular eye towards issues that she thinks the Court should address or with a critical view of the way the law clerks apply the Court’s cert criteria.

As a member of the pool, she would be in a position to push for changes in the way the pool operates. For example, perhaps law clerks should be encouraged to apply somewhat broader criteria, erring on the side of recommending that a case be granted or at least seriously considered. Such cases would undoubtedly receive increased scrutiny from many chambers, and many of them would probably still be denied. But it would be more likely that some cases would be granted that would, under the current system be denied.

Likewise, as a member of the pool, Justice Kagan would be in a better position to push for structural reforms (such as the creation of two parallel pools) than as an outsider. In my mind, therefore, it is more important for her to take a critical look at the criteria the Court uses to evaluate certworthiness, the way those criteria are applied, and the way the cert process (including the pool) operates, than whether she approaches the cert process from inside or outside the pool.

These are just excerpts. Check out Shapiro’s full post, which provides much food for thought, over here.

This is admittedly inside baseball, but we know that many of you live for inside baseball. Readers, do you have opinions on whether Justice Kagan should participate in the cert pool?

Kagan and the Cert Pool [Chicago-Kent Faculty Blog]
A Balance to Justice Alito [Room for Debate / New York Times]
Unless the Justices Start Skinny-Dipping in the Cert Pool [Volokh Conspiracy]
The Cert Pool: Sotomayor Joins It, Lawyers Attack It [The BLT: Blog of the Legal Times]
Supreme Court Work, Early Views of Kagan [New York Times]

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