Following up on Carolyn Shapiro’s excellent post, where she points out that “the journalists are spoiling it for the academics,” I want to continue my very serious argument that there is a major difference between the two, that it is easily recognizable, and that both clerks and justices have nothing to fear from us poor, dull, eggheads. I can understand Carolyn’s point about the Greta Garbo defense for the elect and their bosses who don’t have time or patience for us. However, I urge them make time because they are the practitioners who know far better than we do about how their institution functions and what might be done to improve it.
So I want to address the balance of this post to the clerks and particularly the justices who are no doubt following this thread with much interest. My goal is to convince each of you to speak with those of us who study law and courts. My pitch is threefold: first, there is ample precedent for clerks and even justices speaking to both journalists and academics; second, unlike most journalists, we academics are far more boring and unimaginative and can therefore be completely trusted; and third we have no desire for or possible hope to be rich and famous and therefore will not publish “gossip.” In order to make these points, I will contrast the gossipy expose of reporter Bob Woodward to the scholarly research by Professor H.W. Perry. Both interviewed clerks and justices and yet their work couldn’t be more different. The former’s book was maligned both inside the Court and out while the latter’s is widely considered one of the seminal works ever published on the how the institution functions.
To be sure, justices have always spoken to those of us who write about the Court. In The Brethren we read numerous quotes, not only from the 170 clerks that spoke to Bob Woodward and Scott Armstrong, but also from five justices. Woodward initially spoke to Potter Stewart and later confirmed that he also spoke with Lewis Powell and Harry Blackmun. The memos that I read in the Powell and Blackmun papers confirm this. In David Garrow’s 2001 Constitutional Commentary article, “The Supreme Court and The Brethren,” we learn that William Rehnquist and Byron White were the other two sources for the journalists. After The Brethren was published, Powell wrote one of his former clerks, “The two messages which the book strives to convey are that: (i) the Chief Justice is wholly inadequate for his job, and (ii) the Court is so torn by discord and dissension that it cannot function effectively. Both of these messages are wrong. Yet, for purveying this misinformation, the authors no doubt will reap millions. What a degrading way to become rich!” Blackmun noted, “The book, unfortunately, is bound to have an adverse effect, to some degree at least, on the relationships among us and with our law clerks.” Professor Walter F. Murphy said “in places the book is simply in bad taste—as for example, when the authors mention by name a justice’s wife who has a drinking problem.” Professor Martin Shapiro commented, “This book is full of cheap shots, slanted assessments and innuendo.”
In sharp contrast to the controversy that arose over the portrayals in The Brethren, H.W. Perry’s 1991 book, Deciding to Decide: Agenda Setting in the United States Supreme Court, is universally considered to be one of the most important scholarly works ever published on how the justices and clerks do their work. In order to understand the certiorari process, Perry interviewed sixty-four clerks, government officials such as solicitors general and courts of appeals judges, and five sitting justices. Unlike Woodward’s stories of personalities and foibles, Perry uses social science methods to explain an institutional process: how the clerks and justices decide which cases are important and merit consideration. Professor Herbert M. Kritzer said, “Perry’s work constitutes first-class social science. In Perry's book we have an example of systematic empirical research that is theory sensitive.” Professor Sanford Levinson commented, “Easily the most important study to date. An essential source for anyone with interests in the court's decisional processes (which should include not only many academics, but also every lawyer facing the prospect of drafting or responding to a petition for certiorari).”
The contrasts are stark. And both clerks and justices can easily recognize the difference between muckraking and empiricism, between Simon & Schuster and Cambridge University Press, and between a Washington Post reporter and a Harvard Professor. And if that wasn’t enough, we academics can be trusted because quite frankly we are insipid geeks. I wouldn’t know how to write creatively if I tried. I can’t even spell gosipp let alone write it. If there isn’t a dataset to analyze and a multiple regression model to interpret, I would have to peddle peanuts at Wrigley Field. If my books sell anything above the 143 copies that college libraries are forced to purchase, I am required to take my family and friends out for the most expensive dinner my paltry “royalty” check can provide. After my last book came out, I treated three exchange students who were backpacking across the east coast to a hot dog at Ben’s Chili Bowl on U Street. Yet it is no secret that Woodward reserved the entire Hay-Adams on Lafayette Park for a celebratory party catered by three former White House chefs. So I say to the elect and their employers, fear not. Unlike the well-heeled, high-flying, inventive, fourth estate punditocracy, we impoverished, uninspired, ivory-tower nerds mean you no harm. Call me: 555-1212!