Justice Neil Gorsuch appears undaunted by the tsunami of work facing his chambers as he settles into his first few weeks on the bench and attempts to catch up during the last months of the term.
The 49-year-old justice has decided to buck a Supreme Court tradition and decline to join the Court’s so called “cert pool” — a practice created to ease the workload in each chamber.
The pool exists so that participating justices can share their law clerks in an effort to deal efficiently with the nearly 8,000 new petitions the court receives each year from parties hoping the court will take up their case.
Currently seven justices take part in the pool — where one clerk reviews an incoming petition, writes a recommendation for the court and distributes a memorandum to each chamber advising a grant or denial. Only Justice Samuel Alito, and now Gorsuch, have declined to participate.
A court spokesperson confirmed that Gorsuch has chosen to opt out, as first reported by the New York Times.
Gorsuch, who not only served for 10 years as appellate court judge, but also clerked for two Supreme Court justices, is no stranger to the process and wrote a few of his own cert memos during the 1993-1994 term.
As a justice, he is following in the footsteps of retired Justice John Paul Stevens, who was no fan of the pool and explained in 2006 why he chose to have all incoming petitions come through his chambers so his clerks could make their recommendations directly to him.
“I never thought it was the right way to do it, and I still feel the same way,” he told Jeffrey Cole and Elaine E. Bucklo for “A Life Well Lived: and Interview with Justice John Paul Stevens.”
Stevens explained that he feared that the procedure would cause the justices to be less diligent in their pre-argument preparation.
“I have my clerks go through everything,” he said. “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 an at least read the opinion.”
Peder K. Batalden, a lawyer who has filed his own petitions with the Court, says Gorsuch’s decision reveals that he is “not afraid of hard work.”
“It’s important for the court, as an institution, to have the maximum number of eyeballs and brains looking at cert petitions to determine which cases are worthy of consideration,” he said, and added, “the justices who opt out of the cert pool are serving a check function on the remainder of the court who are working from the memorandum produced by a single law clerk.”
Although clerks are usually only a couple of years out of law school, Gorsuch’s current clerks are more experienced. First-time justices often choose individuals who have already served as clerks or even in law firms to help the new justice get up to speed.
Orin S. Kerr, a former clerk for Justice Kennedy who currently teaches at the George Washington University, joked about the added workload.
“Gorsuch isn’t joining the cert pool,” Kerr tweeted. “His elderly law clerks are no doubt delighted.”