On his first anniversary on the Supreme Court, Justice Samuel Alito Jr. told Legal Times that he was satisfied with the Court's longstanding law clerk pooling arrangement, known as the "cert pool." That's the plan, started more than 30 years ago, whereby justices' law clerks divide up incoming petitions, and one law clerk summarizes each petition for the benefit of all the justices in the pool. Those pool memos can be the only documents justices read before deciding to grant or deny review in the case. Only Justice John Paul Stevens has remained outside the pool, preferring to have his own clerks take an independent look at the petitions to be sure worthy cases are not missed and flawed cases are not granted.
But today, the New York Times' Adam Liptak is reporting that Alito has decided to join Stevens and jump out of the pool. It was not officially announced, though the Court's public information office confirms the shift. In the Legal Times interview in January 2007, Alito said he had set aside earlier concerns about whether the cert pool gave clerks too much power. "My intention is to stay in it. I'm pretty pleased with it." He added, "It's not perfect, but with the number of petitions we get, it is very valuable."
So what changed Alito's mind? Former clerks tell us he made the decision at the end of last term, roughly 2 1/2 years after joining the Court. "Justice Alito wants to be helpful to the other justices in identifying, among the thousands of petitions that come in, those that are worthy of the Court's attention," said Jay Jorgensen, a Sidley Austin partner who clerked for Alito on the U.S. Court of Appeals for the 3rd Circuit and for the late Chief Justice William Rehnquist. "The easier thing to do would be to stay in the pool. I applaud him for doing this."
"The time was right," said another Alito clerk who asked for anonymity. "It's not the sort of thing you just step out and do in your first year. But he's become familiar with the system and he decided it was better to stay off."
Alito's change of mind may also have to do with the miniscule role that junior justices like Alito get to play in influencing which petitions get discussed at the Court's private conferences. Before those conferences, the chief justice sends around a memo specifying which among the hundreds or dozens of pending petitions should be placed on the "discuss list" for debate at the conference. Then, in descending order of seniority, other justices get to add their picks to the discuss list. But they rarely do, and by the time it gets down to the lowest in seniority, the conversation is essentially over. Cases not on the discuss list are on the "dead list," which means they won't be discussed and won't be granted. With Alito out of the pool, his independent choices for the discuss list may have more clout.
Who are the lucky or unlucky Alito clerks who will be handling the extra load? Two of Alito's former 3rd Circuit clerks, Jack White from Pepperdine Law and Michael Park from Yale, are with him this term, along with Dana Irwin from Yale and Andrew Oldham from Harvard.