Commentary: Cert memos: Out of the pool, into chambers

By Michael Wein Dolan Media Newswires BALTIMORE, MD--In 1962, the Supreme Court received a penciled letter on Florida prison stationery. The letter was from Clarence Gideon, who had been denied a lawyer at trial and was convicted of burglary. The Supreme Court saw past the handwritten certiorari petition and, recognizing the potential historic importance of the case, appointed future Supreme Court Justice Abe Fortas to represent Mr. Gideon pro bono. Gideon's letter was the genesis of Gideon v. Wainwright, the landmark decision that guarantees the right to counsel in felony cases to all indigent defendants. Perhaps it truly does take a Supreme Court justice to appreciate a "diamond in the rough" certiorari petition. Gideon's lesson raises the question, however, of whether today's Supreme Court--overburdened with cert petitions from litigants unable to afford legal talent--is able to differentiate cert-worthy petitions like Gideon's, with their present procedures. Last term, the Supreme Court issued only 65 signed opinions after oral argument, the lowest in decades, in cases chosen from among approximately 8,000 petitions for certiorari annually filed. The manner in which those petitions turn into "argued cases" is somewhat mysterious to the public and uses the mechanism known as a "Cert Pool," used by most, but not all, Supreme Court justices since the 1970s. The Cert Pool works by randomly assigning one justice's law clerk (each justice has four) to draft a "Cert Pool Memo" that is shared with all of the justices. This delegation of authority to individual clerks has elicited little commentary outside appellate practitioners and academics. During the confirmation hearings of Elena Kagan in 2010, not a single senator on the Judiciary Committee asked for her view on the influence of the Cert Pool and whether she intended to join it when she became a justice. The Judiciary Committee's failure to inquire of Kagan's views of Cert Pools is surprising, given that the decision to grant certiorari and hear a case overwhelmingly depends on the initial Cert Pool memo's recommendation that the petition be included in the "certiorari discuss list." If a petition does not make the "discuss list," it is uniformly considered to be on what some coin the "dead list," where it has no chance to be heard at the regular certiorari conference and automatically denied. The Cert Pool, in other words, is very influential. Although the justices' clerks are superbly qualified individuals, they are also in their late 20s and few have any practical experience doing the legal work needed to discern whether petitions are "cert-worthy." Last term, only Justice Samuel Alito declined to participate in the Cert Pool. Justice Alito does this by having himself and his four law clerks comb through all 8,000 petitions. This process provides some bulwark against a single law clerk's Cert Pool memo being the sole deciding source of information for the justices' initial examination of certiorari petitions. Nevertheless, Justice Alito is only a single justice whose chambers will not be able to pick out all of the "cert-worthy" petitions that the single law clerks, for whatever reason, failed to appreciate. It doesn't have to be this way. What should be done to help resolve this concern is to split evenly and fairly the cert petitions received. This can be accomplished by having cert petitions randomly distributed among the justices, similar to the practice already in place in virtually all federal trial and appellate courts of randomly assigning cases by computer. The justice whose chamber receives a petition will prepare an initial memo on the case, for review by the other justices. Each justice can then determine the best way to coordinate a thorough examination and review of about 900 cases per year, a highly manageable three cert petitions per day for the entire chambers. Individual justices still will remain constitutionally independent and may review any certiorari petition filed. But the process will not depend on the idiosyncrasy that a memo by one of 36 Supreme Court law clerks, randomly assigned, provides the overwhelmingly decisive factor for why the vast majority of cert petitions are denied. This is particularly problematic as the Supreme Court's internal rules prohibit the justices from supervising or giving advice to their own law clerks, since, for Cert Pool purposes, each law clerk is supposed to be "neutrally" writing the cert memo on behalf of the entire Supreme Court, not under the auspices of any particular Supreme Court justice. Making individual chambers responsible for the content of cert memos will increase the direct review, accountability and supervision by justices of their clerks throughout the cert review process, and will lead to a strengthening of the quality and equality of justice. This is strongly desired, because it is the justices and not the clerks who have the constitutional duty to manage their docket. Though clerks and staff are an invaluable resource for assisting justices in that constitutional duty, it is the Supreme Court justices and not the clerks who have the irreplaceable intangible experience, based on their decades of legal knowledge and ability, to pluck out "hidden" cert petitions like Clarence Gideon's. Gideon's story was highlighted in the book "Gideon's Trumpet." In his time, many uniformly poor criminal defendants had "mock" state trials and were sentenced to decades behind bars on charges that a half-competent attorney would have gotten thrown out. Thankfully, Gideon had an intuitive sense of right and wrong that the Supreme Court recognized and was heralded even by then-Attorney General Robert F. Kennedy, despite the increased costs for the states associated with this newly recognized constitutional right. As Gideon wrote his attorney, Fortas: "I have no illusions about law and courts or the people who are involved in them. ... I believe that each era finds a improvement in law each year brings something new for the benefit of mankind. Maybe this will be one of those small steps forward." That sentiment still holds true today. Michael Wein is an appellate and trial litigation attorney in Greenbelt. He can be reached at weinlaw@hotmail.com. Entire contents copyrighted © 2012 by The Dolan Company. Published: Thu, Aug 30, 2012

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