Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
Introduction Case Selection Decision Making Archive Viewer
Information on Case Selection

Preliminary (Pool) Memoranda

Each term the Supreme Court receives over 7,000 requests for review, most of them petitions for writs of certiorari ("cert"). And, each term, the justices reject roughly 99 percent of these requests, meaning that they hear and decide (grant "cert") less than 100 cases.

The 7,000 or so petitions face several checkpoints along the way, which significantly reduce the amount of time the Court, acting as a collegial body, spends on deciding what to decide. The staff members in the office of the Supreme Court clerk act as the first gatekeepers. When a petition for certiorari arrives, the clerk's office examines it to make sure it is in proper form, that it conforms to the Court's precise rules. For example, briefs must "be produced on paper that is opaque, unglazed, and not less than 60 pounds in weight, and shall have margins of at least three fourths of an inch on all sides." Exceptions are made for litigants who cannot afford to pay the Court's fees. The rules governing these petitions, known as in forma pauperis briefs, are somewhat looser, allowing, for example, indigents to submit briefs on 8 1/2 by 11-inch paper. The clerk's office gives all acceptable petitions an identification number, called a "docket number," and forwards copies to the chambers of the individual justices.

Each justice reviews the petitions, making independent decisions about which cases he or she feels are worthy of a full hearing. Eight of the nine justice use the "certiorari pool" in which clerks from different chambers collaborate in reading and then writing memoranda on the petition. (Only Justice Stevens does not participate in the pool.)

The resulting pool (or "preliminary") memo follows a standard form. At the top is the case's name, docket number, the identity of the court below and the participating judges, and so on. Within the memo is a summary of the facts of the case and the decision of the lower court, the arguments of attorneys and amici curiae, and the clerk's analysis of the legal issues. (The complete memo is available as a .pdf file.)

The pool writer concludes with a recommendation; e.g., to grant or deny cert., to hold the case, to call for the views of the Solicitor General, or some combination thereof (as in this case). Note the handwriting at the end of the memo. These are the comments of Justice Blackmun's clerk, who reviewed the memo for the justice and added his/her analysis (or "markup"). Here the analysis is brief: Blackmun's clerk agrees with the pool writer. But that's not always the case.

In Rentsen v. Coors Co. (93-1631), the pool writer recommended a WEAK GRANT. Blackmun's clerk disagreed and wrote a note to that effect to the Justice.

Discuss List

Based on the cert pool memo and his own inclinations, the Chief Justice creates a "discuss list" containing those cases he feels worthy of full Court consideration; any justice may add cases to this list but may not subtract any. About 20 percent to 30 percent of the cases that come to the Court make it to the list and are actually discussed by the justices in conference. The rest are automatically denied review, and the lower court decision stands.

Voting on Cert

By tradition, when the Court meets (in a private conference) to vote on certiorari, it adheres to the so-called Rule of Four: it grants certiorari to those cases receiving the affirmative vote of at least four justices.

As the docket sheets below indicate, the justices have a number of options when they meet to vote on cert.

This docket sheets shows the use of a "Join 3" (J3) vote. Justices may have different interpretations of a Join 3 but, at the very least, it tells the others that the justice agrees to supply a vote in favor of cert.

Here we see that several justices cast votes to deny; Justice Stevens appears to have changed his vote.

Docket 56
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This docket sheet shows a closely divided Court: five justices voted to grant and four to deny. In accord with the Rule of 4, the Court granted cert. The justices heard and decided the case during the 1994 term---after Justice Blackmun had departed from the Court. More generally, the Court identifies the cases accepted and rejected on a "certified orders list," which is released to the public. For cases granted certiorari or in which probable jurisdiction is noted, the clerk informs participating attorneys, who then have specified time limits in which to turn in their written legal arguments (briefs), and the case is scheduled for oral argument.

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  • Click here for all are preliminary [pool] memoranda and docket sheets from Blackmun's years on the Rehnquist Court (1986-1993 terms).
  • Click here for documents pertaining to cases the Court agreed to hear and decide.