It appears that a common theme is emerging in our discussions about studying law clerks, to wit, the law clerk code of conduct. Ironically, not only does the Code of Conduct for Law Clerks of the Supreme Court of the United States (March 3, 1989) create a duty of confidentiality, but in recent years the Supreme Court has made the code itself confidential. In writing my book, I contacted the Public Information Office of the Supreme Court and requested a copy of the code. My request was denied. I then contacted Chief Justice Rehnquist's chambers, only to receive a short, curt letter from the Chief Justice himself - again denying my request to see a copy of the code. I later found a copy in the personal papers of Justice Thurgood Marshall at the Library of Congress.
The code of conduct is divided into six ethical canons. Relevant to this discussion, the code states that law clerks owe both their individual justices and the Court itself "complete confidentiality, accuracy, and loyalty" (emphasis added). The Code reminds the law clerk that the relationship between the law clerk and the justice is "essentially a confidential one," adding that the law clerk "cannot divulge any confidential information received in the course of the law clerk's duties." Curiously, the phrase "confidential information" is not defined. In fact, the code allows the individual justices to create "more stringent" ethical standards than those imposed by the code. Thus, the justices can essentially define confidentiality as they see fit -confidentiality could include not only discussions about specific cases, but the kind of soup that was served at a justice's dinner party for the clerks or how many fouls Justice Byron White committed during a game of basketball on the "highest court in the land."
Why such secrecy about a code of conduct for government employees? At the time, I wondered if denying researchers copies of the code of conduct, and thus preventing researchers from understanding the specific ethical duties placed on law clerks, resulted in researchers being unable to make a convincing case to former law clerks that their research agenda did not run afoul of the code of conduct. How can a researcher argue that her questionnaire does not violate the duty of confidentiality if the researcher does not know the scope of that duty? Whatever the reason, making the rules about confidentiality confidential places additional and unnecessary roadblocks in the path of the researcher.