Neil Gorsuch has taken an impressive stand at the Supreme Court by deciding not to join the cert pool.
The cert pool is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari (“cert”) to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E. Burger.
Prof. Douglas Berman of The Ohio State University Mortiz College of Law, who’s also a former 2nd Circuit law clerk, says that the cert pool might be doing more harm than good: “Perhaps if the Justices spent more time personally reading cert petitions and lower court rulings – and not just summaries from one clerk in the pool – they might directly discover areas of the law in need of extra attention and also might better appreciate the mess they sometimes make by issuing fractured rulings.”
You may assume that each of these clerks has their own opinion of the law, and with lawyers being almost a synonim of leftist, it’s most likely that many of them are not ideologically aligned with conservative justices. So the collective of left-wing agenda clerks is tasked with reviewing each case on the docket and then distributing a memo to the justices with their suggestion if the case should be granted or denied hearing.
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“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.” – writes Lyle Denniston (SCOTUSblog)
Since the Judiciary Act of 1925 (“The Certiorari Act”), the majority of the Supreme Court’s jurisdiction has been discretionary. Each year, the court receives approximately 9,000–10,000 petitions for certiorari, of which less than 1% (approximately 80–100), are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.
Such practice give an enormous power to these faceless clerks, as their recommendations carry a lot of weight in the process, filtering the justices decisions.
So what Gorsuch did to the cert pool practice?
He appoints his own hand-picked staff to look over ALL the petitions. This is a bold move by the new justice, and it signals his skepticism of the legal interpretations given by the body of law clerks. It is a very positive sign showing Gorsuch’s dedication to hear cases that for conservative folks like him, is a concern, rather than what random clerk wants ruled upon.
We have another proof that President Trump certainly made a wise choice in selecting independent thinker Neil Gorsuch to the nation’s highest court.
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