The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration, but it is well known that the Court is far more likely to grant a cert petition when it questions the outcome below. This qualitative empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court’s certiorari process is neither objective nor neutral – and may prejudice certain classes of petitioners. Cert pool clerks applying the subjective certiorari criteria – such as whether there is a legitimate split in lower court authority, whether the lower court committed a gross error, or whether an important national interest is at stake – appear to overstate the relative merits and importance of petitions brought by state governments, while understating the merits and importance of petitions brought by others.
This dichotomy appears in stark relief in the context of federal Indian law, where a disproportionate number of disputes arise between state and tribal interests. In this study of more than 162 certiorari petitions filed between 1986 and 1994, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition, often labeling them “factbound” and “splitless.” While the cert pool recommendations are not binding on the Justices, the gatekeeping function of the cert pool is effective in denying tribal petitioners their day in court.