I confess. I received Todd Pepper’s one-page survey. I think I filled it out and sent it back, but I’m not sure (Todd might know). I know I didn’t participate any further in his study, despite my interest in his findings, although I don’t recall if I was one of the people he contacted.
That said, if he had requested an interview I likely would have turned him down. Whether my reluctance to participate is due to my views on law clerks’ confidentiality obligations I can’t say for sure. Although some former clerks apparently disagree, in my view confidentiality clearly extends to the cases that came before the Court while I was a law clerk. That duty doesn’t end when the clerkship ends. Conversely, it seems pretty well accepted that confidentiality doesn’t extend to general procedures of the Court, such as how the cert pool works. The in-between cases are the tougher ones, things like the workings of individual Justices’ chambers, which is what Todd and Stephen Wasby are interested in.
Rather than confidentiality, my guess is that much of the reluctance of clerks to talk about their Justices’ chambers is due to two things, neither of which derives from any formal duty of confidentiality. The first is simply wanting to be left alone. Either because of a sense of personal privacy or simply being too busy, many people don’t respond to surveys. (Actually, Todd’s 40% response rate to his initial survey and Stephen’s 41.3% response rate to his both strike me as quite good.) Is it really surprising that busy people aren’t all that interested in participating in empirical research studies? And I say that as an academic who’s very interested in the results of that empirical research.
The second is respect for the Justice for whom they worked (and perhaps a concern that the Justice might misperceive any contacts with a researcher). Most clerks have ongoing relationships with their Justices, and highly value those relationships. In areas where confidentiality obligations are unclear, why do something that the Justice might feel is inappropriate? There’s lot of things I wouldn’t talk about with a researcher (not just the workings of a Supreme Court Justice’s chambers), particularly things having to do with people I’m close to and respect. This possibility certainly would be consistent with Todd’s finding that “law clerks of deceased justices were more willing to provide detailed information as to their former employer’s hiring and utilization practices than law clerks whose justices still sit on the bench.”
Todd writes that “[b]ooks like The Brethren and Closed Chambers have not helped pull the reluctant law clerk out of the shadows of the Marble Palace.” Very much the opposite, I would think -- if anything, those books have made law clerks even more reluctant to talk about their experiences. Yes, we know Artemus Ward isn’t penning the next Hollywood blockbuster, but no doubt someone is. And the more publicity given to breaches of confidence, the more sensitive judges and Justices are likely to be about preserving those confidences. The journalists are spoiling it for the academics.
Wasby’s project is an interesting one that I would interpret as
providing further evidence that confidentiality may not be the issue
here. The judge he was studying affirmatively approved of his study,
even permitting him to observe discussions between the judge and his
current clerks. Former clerks who contacted the judge about the study
apparently “ha[d] their fears assuaged by him.” Even so, the study got
“an acceptable but not spectacular” rate of response of 41.3%. Stephen
states that his “sense is that confidentiality was a part of
their concern.” Maybe the clerks view confidentiality as an obligation,
not owed to the judge (or to themselves) but to the court or Court as a
whole. That would be consistent with law clerks’ obligation to keep
case-related matters confidential -- other judges or Justices are
involved in those decisions. But it wouldn’t seem to require keeping
confidential matters relating to the practices in a particular judge’s
chambers. Thus, what his findings suggest to me is that reasons other
than confidentiality are behind the perceived reluctance of former
clerks to talk.
In short, I’m not yet persuaded that confidentiality obligations are interfering with the sorts of research on law clerks that have been described here. Are response rates better for other professionals who have similar relationships with their former bosses -- but no duty of confidentiality? Are law clerks really more “challenging” research subjects than other, comparable subjects -- say, former congressional staffers? Where’s the control group? Until I see something more, I’m withholding judgment on whether it is confidentiality or something else that is the cause.