Elder Patriot – President Trump’s first Supreme Court Appointee’s energy and work ethic is already making a profound change in the way the high court decides to hear cases.
The U.S. Supreme Court manages more than 8000 petitions for certiorari (“cert”) to the high court annually. To handle the number of petitions to be heard the justices allocated the decision to a single clerk to determine the importance and legitimacy of any one case. That has come to be known as the “cert pool.”
While justification was based on increased efficiency, in practice this places enormous power in the hands on an inexperienced and perhaps politically biased clerk, and I can insure you that when it’s your case that makes it that far – with hundreds of thousands in legal fees already incurred – that’s the last thing you want.
To date only one justice still reviewed every case for himself, Samuel Alito.
Then in May, Neil Gorsuch broke with the cert pool and announced he was joining Justice Alito in making sure that every appeal to the Supreme Court got his personal attention.
The cert pool was founded after Richard Nixon appointed Warren Burger the Chief Justice almost a half century ago. It’s purpose was to streamline the process but it’s allowed otherwise deserving cases to drop through the poor decision making of any individual clerk.
Each clerk in the pool is assigned cert petitions to review and make recommendations on whether the court should accept the cases. The recommendations are circulated to each justice in the pool.
According to the New York Times, clerks for justices who don’t participate in the pool review all of the cert petitions filed each year.
Those in opposition to the practice suggest that law clerks in the cert pool are reluctant to recommend a cert grant because they don’t want to appear foolish if a case is later dismissed as improvidently granted.
Significantly, a 2007 study found the percentage of cert recommendations by the pool has declined as more justices participated. This has resulted in the drop in the number of cases heard each year by the court. Think about that. As America has become more and more litigious the Supremes were hearing less cases.
And, whom are the plaintiffs falling through the cracks? As always, it’s the little guys. Justice Gorsuch is now taking it upon himself to do his best to make sure that doesn’t continue.
Even the the Times had to admit that, Gorsuch’s decision is an early sign of his “independence and work ethic.”
Once again President Trump has made the right decision and is restoring the justice system so that it works for all Americans.