The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process

Abstract

This Review Essay compares and evaluates two recent books on Supreme Court Law clerks, Courtiers of the Marble Palace by Todd Peppers and Sorcerers' Apprentices by Artemus Ward and David Weiden. Both books add to the understanding of the role of law clerks within the Supreme Court - Courtiers through its primarily historical approach and Sorcerers' Apprentices through its more ambitious statistical approach.

This Review Essay also reports the results from the first empirical examination of every pool memo from four Terms of the Supreme Court: October Terms 1984, 1985, 1991 and 1992. Three characteristics of the cert pool become apparent: (1) it is stingy with respect to making grant recommendations; (2) it emphasizes objective criteria of certworthiness in making its recommendations, such as the presence of lower court conflict; and (3) there is statistical evidence suggesting that its recommendations are correlated with the eventual decisions made by the Court on petitions for certiorari.

Keywords: supreme court, law clerks, cert pool

JEL Classification: K1, K10, K30, K40