Justice Gorsuch Makes His First Power Move… And It's Turning Heads


Supreme Court Justice Neil Gorsuch has displayed an impressive degree of judicial independence by voluntarily opting out of the court’s “cert pool,” a mechanism by which incoming petitions seeking judicial review are filtered through a pool that includes clerks from each judge.

According to The New York Times, the “cert pool” works like this: When a new petition arrives, the pool automatically assigns it to a clerk. It could be any clerk — Gorsuch’s clerk, Justice Clarence Thomas’ clerk, Justice Sonia Sotomayor’s clerk, etc. This clerk reviews the petition and then issues a “grant” or “deny” recommendation to those justices who have chosen to take part in the pool.

By opting out of the pool, Gorsuch has signaled that he prefers that his own clerks review each petition that arrives at the court.


Either he feels misgivings about the political leanings of the others, or he simply trusts his own clerks over those of the other justices.

Either way, this decision illustrates his independence, according to The Times, though it also sets his office up for a boatload of work. As noted by CNN, the Supreme Court receives an average of nearly 8,000 new petitions per year. Mind you, if Gorsuch shares the same attitude as retired Justice John Paul Stevens, who also opted out of the pool, he won’t mind.

“I never thought it was the right way to do it, and I still feel the same way,” Stevens reportedly said during an interview 11 years ago for the American Bar Association’s “Litigation” journal. “I have my clerks go through everything. If I think there’s a significant likelihood, before I vote to grant, I’ll get the papers, and I generally read the papers myself and at least read the opinion.”

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As of May 2017, the only other current Supreme Court justice who has opted out of the pool was Samuel Alito, who left it in 2008.

Whether this was the right decision remained to be seen, though longtime “cert pool” critic Prof. Douglas Berman of Ohio State University’s Mortiz College of Law would likely call it an excellent one.

In a blog post written in 2007, Berman argued that the pool prevented justices from thoroughly reviewing lower court rulings, which can lead to problems.

“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,” he wrote.


H/T The Daily Caller

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