Law clerk hesitance may impact whether SCOTUS hears summer appeals

According to the New York Times, roughly a month from now the Supreme Court justices will meet once again to review petitions that accrued over the summer months for a session termed "the long conference." During this conference the court will review about 2,000 petitions, and will likely reject nearly all of them. According to the Times, the acceptance rate for petitions during the court's regular term is about 1.1%, whereas it is typically only about .6% for those from the long conference.

The article analyzes potential reasons for this, including the propensities of law clerks, new to the court at this time of year, to not recommend too many petitions at the start of their clerkships. The Times cites a recent study published in Law and Society Review, attributing the lower numbers to new clerks who are hesitant to "stick (their) neck(s) out" by recommending that the court hear a case when they are new to their roles. The study describes part of a Supreme Court's agenda-setting process called a cert. pool, where clerks for every justice (other than Justice Alito) draft case memos and make recommendations to the court about what petitions to grant.

The study recommended additional training for clerks to help them overcome the uncertainty and hesitation that impact this process early in the term. The Times also references tactics attorneys might take to avoid their cases being heard in the long conference, including requesting extensions of filing deadlines or a rehearing by the appeals court.

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