He hasn’t been wearing the robes very long, but Supreme Court Associate Justice Neil Gorsuch (and I swear I will never get tired of typing that phrase) is striking out on his own path at the nation’s highest court. The Daily Caller put up this report yesterday and it deals with a somewhat controversial decision that Gorsuch made pretty much as soon as he’d taken his seat. It has to do with what’s referred to as the “cert pool” which is the method the court uses to determine which of the thousands of petitions they receive every year are granted a hearing. They are typically spread out among the clerks of the various justices who review them and pass on a recommendation to the justices as to whether they merit granting a hearing or should be rejected.
Gorsuch has declined to participate in this traditional process and will instead have his own clerks review all of the petitions individually. That begs the question of precisely why he wants to take on this additional work.
In choosing not to join the pool, Gorsuch is flashing an independent streak. By having his own staff review each petition, he may be signaling misgivings about the judgements of other chambers, or of pool memos prepared by clerks who don’t share his interpretative commitments. Under the cert pool system, the justices must accept that a significant portion of petitions are reviewed by young clerks who may not share their opinions on a wide range of legal issues.
On the other hand, it may simply reflect a preference for the work product of his own clerks, an inclination shared by other federal judges including Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals. He may also feel that opting out of the pool ensures greater scrutiny is given to each petition.
This might be seen as a bit of a insult to the rest of the judges because it could be interpreted as calling into question the competency of their clerks. Or, as the DC notes, it may just be a case of Gorsuch wanting to be absolutely thorough in discharging his duties even if it eats up a lot more cycles in his own office. Either way, it’s definitely a signal that he’s not ready to settle into the status quo.
But the existence of the cert pool actually should be worrying in the first place. Getting a position as a clerk to a SCOTUS judge isn’t easy and I’m sure they’re not just grabbing people off the street, but that’s still not the same level of experience as an actual justice on the high court. And the justices no doubt choose clerks who are ideologically in their own orbit. How many petitions show up which might be of great interest to a particular subset of justices but never see the light of day because they got a thumbs down from the clerk of one of the other members? Yes, the court can override the recommendation in the memo, but given the volume of applications, how often does that happen?
This could be a very positive signal from the court’s newest member. If he’s willing to take on the work of having his own office review every single petition which is received, he may wind up overruling the call made by (for example) one of Sotomayor’s clerks. Well… he can’t “override” it on his own, but he could at least make the case for granting or dismissing from one of the nine seats.
I’m going to take this as a positive sign for the time being. The man has been granted some of the most awesome power in the country and he has a responsibility to wield it wisely. Sounds like he’s off to a good start.