Innocuous Time-Saver or Counter-Majoritarian Loophole? The Cert Pool and Policy on the U.S. Supreme Court

Since 1972, the certiorari petitions that arrive at the Supreme Court are randomly assigned for review to one of the five to eight justices who are members of the Supreme Court cert pool. Justices who are not members of the pool still review each petition. Thus, some petitions for review are evaluated by as few as two justices (or their clerks), and the rest of the Court relies on the recommendations of these justices. This practice has been criticized for its potentially counter-majoritarian implications. Formalizing the communication between the better-informed justices who review a petition and the rest of the Court as a sender-receiver game, I assess the circumstances under which the Court median's preferred policy outcome is subverted. Then, I analyze the decision to opt out of the cert pool. In some equilibria, the cert pool can move policy away from the median justice; in others (specifically, those in which one justice on each side of the median opts out of the cert pool) it is predicted to have no influence. Empirical patterns of cert pool membership in the last eleven natural courts are consistent with equilibrium predictions