Tag Archives: Law Clerks

William Blake in the New York Times

Supreme Court’s ‘Long Conference’: Where Appeals ‘Go to Die’

By Adam Liptak

WASHINGTON — Four weeks from now, on Sept. 28, the Supreme Court justices will gather in private for an annual ritual called the “long conference.” They will consider the roughly 2,000 petitions to hear appeals that have piled up over the summer. And they will reject almost every one.

“The summer list is where petitions go to die,” said Gregory G. Garre, a solicitor general in the George W. Bush administration who is now at Latham & Watkins.

The odds of persuading the Supreme Court to hear a case are always long. At the conferences held on many Fridays during the term, which lasts from October to June, the justices consider perhaps 200 petitions at a time and grant about 1.1 percent of them. At the long conference, the rate is roughly half of that, around 0.6 percent.

That difference is significant. “For the majority of petitioners, the most important moment is trying to get in the door,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “Once you’re in, the statistics say, you have a two-thirds chance of winning. So the difference between a grant and a deny is truly the difference for a handful of cases on the summer list between winning and losing.”

Lawyers and scholars have various theories about why the long conference is so inhospitable. One is that the justices, who decide about 70 cases a year, do not want to grant too many petitions right away for fear of having to turn down better ones later on.

“It’s like the beginning of a long buffet,” Professor Fisher said. “You don’t want to fill your plate with too much stuff, lest you not have room for some delicious items at the end of the line.”

A new study says law clerks, rather than the justices, are to blame. New law clerks arrive over the summer, four for each justice, and they appear to be particularly reluctant to recommend granting petitions soon after they start.

That matters, because law clerks play a significant role in reviewing the appeals, which are formally called petitions for certiorari. Eight of the nine justices — the exception is Justice Samuel A. Alito Jr. — have assigned their law clerks to a shared “cert. pool.” A single clerk makes a recommendation to all of the participating justices about which cases to hear.

Justice John Paul Stevens, who retired in 2010, never joined the pool. He said it had caused “the lessening of the docket.”

“You stick your neck out as a clerk when you recommend to grant a case,” he told the journalist Tony Mauro, then with USA Today, in 1998. “The risk-averse thing to do is to recommend not to take a case.”

That is true all year long. But it is even more true, the new study found, when clerks are just getting started. “Compared to all other times in their tenure, clerks are significantly less likely to recommend a grant at the long conference,” the study concluded.

The study was prepared by William D. Blake, a political scientist at the University of Maryland, Baltimore County; Hans J. Hacker, a political scientist at Arkansas State University; and Shon R. Hopwood, a teaching fellow at Georgetown University Law Center. It analyzed clerks’ “pool memos” from 1987 to 1994, which were released as part of the papers of Justice Harry A. Blackmun.

The study found that clerks considering similar petitions were 36 percent less likely to recommend granting them during their first months on the job. The justices seemed to sense this, overriding denial recommendations at the long conference at a slightly higher rate than at other times, but not enough to make up the difference.

The bottom line, the study said, is that “litigants face an arbitrary and legally irrelevant disadvantage that is empirically attributable to the clerks’ initial hesitation to recommend grants.”

Sophisticated lawyers do what they can to dodge the long conference. “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” said Mr. Garre, the Latham & Watkins lawyer. “Fortunately, as tough as the odds are, the cream can still rise to the top.”

Irving L. Gornstein, the executive director of Georgetown’s Supreme Court Institute, listed some of the ways in which lawyers can try to work the system to avoid the long conference. After a federal appeals court issues a ruling, he said, lawyers can seek a rehearing from the full appeals court to stretch things out, or go straight to the Supreme Court to hasten them. They can file petitions right away or wait for the 90-day deadline. They can seek extensions of the deadline.

Such maneuvering may only drive down the rate of granting cases at the long conference further, Professor Fisher said.

“Precisely because the summer list has become such a known quantity among the Supreme Court bar and others, my sense is that fewer serious cases end up on the list,” he said. “So it’s a bit of a self-fulfilling prophecy.”

The study proposed additional training for law clerks to encourage them, right from the start, to recommend granting more cases. But it stopped short of suggesting that the justices reconsider whether they should review so many petitions in a single conference.

A management consultant might, for instance, urge the court to add conferences during the summer. Professor Blake, one of the study’s authors, said such a recommendation would have been presumptuous.

“I don’t think we’re going to tell the justices to cut their vacations short,” Professor Blake said.

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