Power Move: Gorsuch Opts Out Of High Court Labor Pool

"...... The cert pool was established in 1973 during the early days of the Burger Court, in order to efficiently review the near 8,000 petitions received each term. In practice, the petitions are apportioned among the Court’s law clerks, who then circulate a memo to the justices recommending a grant or denial. Therefore, a law clerk’s recommendation significantly affects the outcome of a petition.

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 judgments 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.

The decision also suggests Gorsuch might share the concerns of many court-watchers and legal scholars who have criticized the pool. Detractors argue it empowers well-credentialed but unseasoned law clerks, privileges certain parties over others, and has resulted in a dramatic decrease in the size of the Court’s docket. ...."

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