Posted by Orin Kerr:
The Supreme Court "Cert Pool" Criticized:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253566190
[1]Tony Mauro has coverage of a recent panel on the[2] cert pool in
which several very prominent practitioners criticized the Supreme
Court's existing "cert pool" on the ground that the Justices defer too
much to the law clerk's recommendation.
For what it's worth, I tend to disagree. I don't think the Justices
pay any serious attention to the ultimate recommendation of a law
clerk on whether to take a case. It's true that David Stras [3]found a
correlation, but I suspect the causal arrow is in the other direction:
There is a connection between law clerk recommendations and what the
Justices do because the law clerk recommendations are designed to try
to predict what the Justices will do. That's my sense, at least.
As for why the number of cases the Court takes has dropped, I think
changes in personnnel explains a lot. Two decades ago, a few of the
Justices had much less strict standards for what cases to take. In
particular, I understand that Justices White and Blackmun thought the
Court should take a lot more cases, and they often voted to grant
cert. When these Justices retired, the number of cases the Court took
dropped.
References
1.
http://legaltimes.typepad.com/blt/2009/09/sotomayor-joins-the-cert-pool.html
2. http://en.wikipedia.org/wiki/Cert_pool
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=938566
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