« Ind. Law - Still more on: 100 Year Anniversary of Indiana Eugenics Legislation: Hoosier State Led World In Enactment of Involuntary Sterilization Laws | Main | Ind. Courts - Knox County Circuit Court judge turned down on request to pay court reporters overtime »

Wednesday, March 14, 2007

Courts - Supreme Court Clerks may be limiting the number of cert petitions granted in order to avoid "DIGs"

This is fascinating. What is a "DIG"? It stands for dismissed as improvidently granted. Stephanie Francis Ward has a long article in the ABAJournal that explains:

Anup Malani doesn’t recall which clerk wrote the memo six years ago suggesting that the U.S. Supreme Court grant certiorari to an affirmative action case.

But Malani, who was clerking for Justice Sandra Day O’Connor, remembers the result. After full briefing and oral argument, the court dismissed the case as improvidently granted, otherwise known as a DIG.

The case, Adarand Constructors Inc. v. Mineta, 534 U.S. 103 (2001), involved a challenge to the U.S. Department of Transportation’s affirmative action program for federally funded contracts. The Supreme Court said the petitioner had failed to challenge an appeals court ruling that denied standing.

Luckily, the justices and other clerks probably didn’t know the identity of the memo’s author either, says Malani, now a law professor at the University of Chicago. But, he says, he assumed the author was embarrassed.

“For one thing, the court seems unprofessional when it admits a mistake,” Malani says. “If I were that person that recommended something that got DIGed, I would have forced the court to look bad.” * * *

University of Minnesota law professor David R. Stras may be the first with numbers to back this up. In an article slated to be published this month in the Texas Law Review, Stras examined the papers of Justice Harry A. Blackmun, reviewing every cert pool memo from the 1984, 1985, 1991 and 1992 terms.

As Stras himself writes in SCOTUSblog:
As some of you may recall from earlier posts, this month's issue of the Texas Law Review will contain my review essay, "The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process." I just posted the final version of the essay on SSRN, see here, which is now available for download. The essay empirically identifies three characteristics of the cert pool for the first time: (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 strong statistical evidence suggesting that its recommendations are correlated with the eventual decisions made by the Court on petitions for certiorari.
Here is the link to the 51-page article on SSRN which has, it appears, as much about the clerks' cert pool as most readers ever will want to know.

Posted by Marcia Oddi on March 14, 2007 04:06 PM
Posted to Courts in general