Selecting U.S. Supreme Court Cases

U.S. Senator Mike DeWine (R - OH) is a member of the Senate Committee on the Judiciary, which conducted hearings on Judge Samuel Alito's nomination to the U.S. Supreme Court.  The public hearings lasted five days, from January 9 until January 13, 2006.  The comments and questions of Senator DeWine, cited below, were made on Day 2 and reveal how cases submitted to the high court are selected to be heard.  Transcripts of the hearings were available from various sources, including the Washington Post [1].


U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
From the transcript prepared by FDCH e-Media
Tuesday, January 10, 2006; 4:20 PM

DEWINE:  Judge, I have one last question.

If confirmed to the Supreme Court, only part of your job will be hearing arguments and issuing opinions. An equally important part of the job will be involved deciding which cases to hear in the first place.

Each year the Supreme Court receives approximately 8,000 petitions for cert — cert petitions as they are called. These are petitions by a party to a lawsuit asking the court to hear its case.

Out of these 8,000 annual requests, the court decides to hear only about 75 to 80. For many years, individual justices would review each cert petition and cast a vote on whether to hear the case. Today, however, eight of the justices are part of what is called the cert pool.

Here's how it works. All petitions are put into a pool. A single law clerk then picks up a petition and writes a memo recommending for or against hearing the case. That memo is then circulated to the eight justices in the cert pool who use it to cast their vote on whether to hear the case.

Justice Stevens is the only one who does not participate in this pool. Instead, he has his staff prepare a memo on each case with a recommendation tailored to his own thinking on an issue.

It would seem to me that the cert pool greatly limits the exchange of ideas among members of the court.

DEWINE:  I wonder if you could tell me how you would intend to proceed, if you're going to use the pool, or if you are going to do what Justice Stevens does, or if you've thought about it?

ALITO:  Well, I'm aware of the issue. But I have not thought past what might happen with these confirmation proceedings.


So it's not the kind of issue that I have really thought through in my mind.

If I'm fortunate enough to be confirmed, I think I would assess the situation at that time and talk to the Supreme Court justices and see what their views are, the reasons why they're proceeding in one way or another.

I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy case load and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases.

We cannot delegate our judicial responsibility. But we do need to call on — we need to find ways, and we do find ways, of obtaining assistance from clerks and staff employees so that we can deal with the large case load that we have.

DEWINE:  Thank you, Judge.

SPECTER: Thank you, Senator DeWine.

[Note: Judge Alito's nomination to the Supreme Court was confirmed by the Senate on January 31, 2006 with a vote of 58-42, largely along party lines (2).]

  1. "U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court," The Washington Post, January 10, 2006,, accessed 01/28/06.

  2. David D. Kirkpatrick, "Alito Sworn In as Justice After Senate Gives Approval," The New York Times, February 1, 2006,, accessed 02/01/06.

The small number of cases (ca. 1%) selected to be heard by the Supreme Court greatly restricts the access of citizens to justice.  Tulanelink recommends the following procedural changes:

  1. Increase the number of Supreme Court justices from 9 to 13.

  2. Increase the number of cases accepted from an average of 8 to 10 per justice.

  3. Hold law clerks who perform initial reviews to the same standards of judicial conduct and recusal as judges, and make their names known.

  4. Return to all principal parties the reasons for non-acceptance of a case.