Every petition that is docketed at the U.S. Supreme Court, and remains on the docket, will eventually be distributed for a conference, usually held on a Friday. The date of the conference depends upon whether or not the Court is in session, in recess or on vacation. (There were 39 conferences during the 2011 Term.) Does this mean the Court will discuss each petition distributed during their conference? Absolutely not! Although this is a very closely guarded secret, I would estimate that, at best, only 20-25% of the petitions distributed for a given conference are actually discussed during that conference and few, if any, of those discussed, are granted. Those which aren’t discussed, become automatically denied.

The process is quite simple. Each week of the year, the clerk’s office distributes petitions, due for distribution to the justices’ chambers, for a conference, which is generally held, if the Court is in session, 2½ weeks later. Each chamber receives a copy of each petition. However, in 1972, the Court instituted a pooling system whereby each justice, who participates in the pool, is only responsible for his or her proportionate number of petitions distributed. Currently, eight justices participate in the pool, so his or her chambers are only responsible for 1/8th of the petitions and the 9th justice (currently Justice Alito) is responsible for reviewing all petitions distributed. For those justices participating in the pool, the petitions are read by one of the four law clerks typically found in each of the justices’ chambers. Each of them writes a memo as to each petition he or she read that summarizes the petition with a recommendation as to whether or not the petition is cert-worthy. These pool memos are then distributed to the participating justices. Prior to the conference, the Chief Justice circulates a “discuss list” containing any petitions he deems worthy of further discussion. Each justice can add to the list any petition he or she deems worthy. Very few, if any, petitions on the discuss list are granted. The remaining petitions, as I have stated, are automatically denied.

Twenty years ago, the Court was hearing about 125 petitions per-Term, and there were about 2,500 paid petitions filed each year. Today, the Court elects to hear about 78-80 petitions, and the paid docket hovers at the 1,600 mark.

The Court claims there are much fewer cert-worthy petitions. Others claim that the power of the clerks has increased and they are too timid to recommend that cert be granted. Some clerks even boast about never having recommended one petition for certiorari during their year-long tenure. It is hard to blame the clerks, though, since the decline in plenary review has been going on long before the pool system was instituted.

In any event, “distributed for conference” is a somewhat misleading phrase.

Tagged: Appellate Practice, Oral Argument, History, Supreme Court of the United States