Have the law clerks been running the Supreme Court? Gorsuch refuses to play!
WASHINGTON — 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.
The justices each hire four law clerks, who are recent law school graduates with uniformly stellar credentials. But they are also young and inexperienced, Kenneth W. Starr wrote in 2006 in the Minnesota Law Review.
“The prevailing spirit among the 25-year-old legal savants, whose life experience is necessarily limited in scope, is to seek out and destroy undeserving petitions,” wrote Mr. Starr, a former appeals court judge, solicitor general and independent counsel in the Whitewater investigation.
A petition accepted that must later be dismissed as “improvidently granted” is a significant embarrassment to the clerk in question. On the other hand, it is hard to get into trouble by recommending a denial.
Having several clerks review each petition — the pool clerk and ones from the chambers of Justices Alito and Gorsuch — would presumably mean that fewer worthy ones fall through the cracks.
Pool memos are not public, but some have been released, decades after they were written, in justices’ papers after their deaths. They can seem hedged and homogeneous because they were written for all of the participating justices and not just the clerk’s own justice.
The memos in Justice Harry A. Blackmun’s papers made clear they were not the last word in important cases, as Justice Blackmun’s own clerks reviewed and annotated.
Justice Ruth Bader Ginsburg, who participates in the pool, has cautioned against overstating the clerks’ roles in evaluating petitions seeking review.
“The law clerks are highly intelligent, very able, uncommonly diligent,” she told Docket Sheet, a newsletter published for Supreme Court employees, in 1993. “They save us hours upon hours of labor. But most of them are also young and in need of the seasoning that experiences in life and in law practice afford. Whenever I think a case may be cert. worthy,” she said, using legal language meaning worthy of review, “I will do the homework required and will not rely solely on a pool memorandum.”
The pool started in the early 1970s at the suggestion of Justice Lewis F. Powell Jr., who had come from a law firm. At first, five justices participated.
“In true Washington, D.C., fashion,” Mr. Starr wrote, “this modest government program has grown significantly and now possesses great power.”