OK, not an economist, but it seems to me that more than just Justices Stevens and Alito are going to have to forego the cert pool to maintain the economic viability of the Supreme Court cert pool.

And by economic viability, I mean for the former clerks and for others who are a part of the Supreme Court bar.

Consider first, that (perhaps until the last year or so), former Supreme Court clerks stood to gain a $50,000 or so bonus at their firm just for being a clerk. The experience of reading several hundred cert petitions and opps, and writing cert pool memos, plus knowing the inner workings of the Court, is invaluable once those clerks go out into the real world and start practicing before the Court.

But consider second, as noted here, that appellate litigators have a hard time explaining to clients why only two or three clerks will read their very expensive cert petition (or even cert opposition) before the whole thing is tossed without comment by the Court. Those clerks are the cert pool clerk, Stevens’ clerk, and Alito’s clerk, but maybe not even that many, since the Stevens and Alito clerks could just read the cert pool memo.

A modest proposal — there should be TWO cert pools. Let’s face it — the Court is generally split, with Roberts, Scalia, Alito, Thomas, and Kennedy (the most conservative swing judge in at least 120 years, or ever) on one side, and Breyer, Ginsburg, Stevens, and likely Sotomayor on the other. I’ve read enough cert pool memos to know that they’re written usually by clerks who know their audience — a majority of conservative, federalism judges with an originalist bent. Justices like Breyer, Ginsburg, and Souter (and Blackmun before them) joined out of convenience and probably cordiality. No reason for it. Everyone’s going to see the other cert pools memos. And getting the preliminary  views of more than one clerk is reason alone to do it, but now those Supreme Court litigators can say more clerks are reading those cert petitions….