“Ask the Author” with David Stras: Part 1

This post is part 1 in our discussion with Professor David Stras of the University of Minnesota Law School. Professor Stras has written extensively on issues surrounding the Supreme Court; in this entry, we discuss his new paper, “The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process,” which can be found here. Professor Stras will be back to discuss two of his other papers (see our original post here), but he also invites further questions about the issue of the Court’s docket and the influence of law clerks in shaping it. Leave any comments or questions as comments to this post or e-mail me here and Professor Stras will do his best to follow-up.

Let’s begin by talking about this Term, since there has been much discussion about the shortfall on the docket. While we obviously do not have access to the cert. pool memos, your evidence seems to show that the number of grants is typically about 30% higher than the number of grant recommendations. Might this be the case this term as well? If so, what does your evidence from previous terms tell you about why the pool may be increasingly stingy about granting cases?

The shortfall in the current docket has received a lot of attention in the press, and for good reason. Over the past five or six years, the number of plenary cases on the docket has reached its lowest level in about 150 years, or since before the Civil War. Without seeing the numbers from the current pool, which will not be available until one of the current Justices publicly releases their papers, it is difficult to say whether this Term’s cert pool follows the trends that I identified in the Review Essay. I was surprised, however, by the remarkable consistency between the number of grant recommendations made by the cert pool and the number of cases granted certiorari by the Supreme Court—which yielded a ratio every year of approximately 70%. Because of that consistency, I would not be at all surprised if the current pool fell within that historical ratio.

The reasons for this stinginess, I believe, are due to the perverse institutional incentives created by the cert pool itself. First, writing for eight of the nine Justices naturally makes law clerks more cautious in their recommendations because it is difficult to go out on a limb and recommend a grant when you are writing for practically the entire Court. A deny recommendation, which was by far the most common suggestion in the pool memos that I reviewed, is subject to far less scrutiny than a recommendation to grant. Moreover, most law clerks are less than five years out of law school with relatively little practical experience (although that is changing in some chambers), so that lack of experience usually yields caution in the review of cert petitions. Second, a deny recommendation avoids the institutional embarrassment for a law clerk who recommended that the Court grant a case that turned out to be dismissed as improvidently granted on a jurisdictional, vehicle problem, or other related ground. Because each slot on the Court’s plenary docket is valuable in light of how few cases are granted certiorari, a law clerk has incentive to avoid a recommendation that eventually forces the Court to essentially waste one of those prized slots. Finally, the fact that the Court’s docket has been declining in recent years surely sends a signal to the law clerks that they should not recommend a grant too often, even if the message is implicit and unintentional on the part of the Justices. As I state in the Review Essay, the behavior of law clerks is surely a product of the norms of the institution to which they belong.

On the reasons behind the declining docket, any comprehensive answer will have to await my current writing project. I am collecting data on a number of reasons that might explain the declining plenary docket, including a decline in the number of paid petitions, changes in the personnel on the Court, the elimination of mandatory appellate jurisdiction for the Supreme Court in 1988, and a decrease in the amount of government litigation (especially the Solicitor General) before the Court. Early indications from my empirical research, however, suggest that the problem of the declining docket may get worse before it gets better, especially if Justice Stevens is the next member of the Court to retire.

You notice that Justice Blackmun was among the members of the Court that voted to grant cert. much more frequently than many of his colleagues. Even though he was in the pool, did you find evidence that he instructed his clerks differently than others did? Was there any evidence of frustration on his part as the docket dwindled during his tenure? Were there attempts by him to persuade Justices or clerks to do something about the shrinking docket?

Actually, Justice Byron White was the Justice that voted most frequently to grant certiorari, and this finding is pretty consistent from Term to Term. The numbers are really striking, and I am currently collecting docket sheets from October Terms 1988, 1989, and 1990 that make that point even more forcefully. As several authors have noted, Justice White was quite concerned about ensuring that the Supreme Court functioned in its supervisory capacity and that it acted expeditiously to resolve the splits plaguing the lower federal and state courts. He also dissented from denials of certiorari numerous times, more often than most of his other colleagues on the Supreme Court. You would be surprised at the disparity between the grant votes of Justice White and every other member of the Court.

As you note, Justice Blackmun also voted to grant certiorari more often than his other colleagues in the cert pool. I found no evidence in Justice Blackmun’s papers, however, that would suggest that he instructed his law clerks any differently in light of his predispositions on the certiorari process. I also could not find any evidence that Justice Blackmun became frustrated with the declining plenary docket, although I was by no means able to scour all of the almost 1,600 boxes of papers in the collection at the Library of Congress.

We also had a question from a reader about which cases the Court granted cert. in which the pool had recommended deny and there was no circuit split. Do you recall any striking instances of this happening? Were there justices who were more or less likely to do this than others?

Seventeen cases from OT 84 and eighteen cases from OT 85 fell into this category, and there are few high-profile cases on the list. Instead, somewhat predictably, the two types of cases with the largest representation are essentially factbound criminal and habeas cases, as well as employment law cases, including matters involving the interpretation of the Rehabilitation Act (Alexander v. Jennings, No. 83-727 and Bowen v. American Hospital Assoc. , No. 84-1529), the Civil Service Reform Act (Cornelius v. Nutt, No. 83-1673), and ERISA (Massachusetts Mutual Life Ins. Co. v. Russell, No. 84-9). In the Review Essay, I demonstrate through empirical evidence that the cert pool places great weight on the objective criterion of certworthiness, such as the presence of a split on a question of law among the federal and/or state courts. The cases on this list not only failed to present a lower court conflict, but many of them involved essentially factbound error correction by the Court. In that way, they might be referred to as cases in which the Court “reached out” to decide them.

By far (at least in my opinion), the three most interesting cases on the list are Goldman v. Weinberger, United States v. Mechanik, and Aspen Skiing Co. v. Aspen Highlands Skiing Corp. , although I doubt that any of them would necessarily top a Court-watcher’s list of the three most important cases from those two Terms. The Goldman case involved the constitutional validity of an air force regulation that prevented the wearing of a yarmulke by servicemen, Mechanic answered the question of whether an error during grand jury proceedings was harmless in light of a defendant’s eventual conviction on the charge, and Aspen Skiing involved a claim under section 2 of the Sherman Act. Unfortunately, I am still in the process of collecting docket sheets from those Terms, so I am unable to answer at present the very provocative question of whether any particular Justices were more likely “to reach out” and take those types of cases.