Thanks to William Ford, Todd Peppers, Artemus Ward, and Stephen Wasby for getting this discussion underway. As a law professor who teaches Professional Responsibility (and as a former law clerk), I may come at the question of law clerks as research subjects from a somewhat different perspective from some of my co-panelists. (In fact, I have to confess that I am one of the law clerks who did not respond to Todd Peppers’ survey.) Perhaps surprisingly, however, I am not a confirmed absolutist on the question of law clerk confidentiality, or more accurately, I’m skeptical of absolutism, and I may say more about that later on. But in this first post, I’d like to say a few words about why, in my view, law clerks, especially Supreme Court law clerks, are such skittish subjects.
As others have already noted, the Code of Conduct for Law Clerks of the Supreme Court of the United States made explicit the law clerk duty of confidentiality (and a similar code exists for the lower federal courts). But more important than the Code of Conduct, I believe, are the culture and norms most law clerks internalize. It is not only an ethic of confidentiality, but also an ethic of loyalty both to the clerk’s own Justice and – significantly – to the institution itself. At its strongest, this ethic of loyalty encompasses a belief that the law clerks should never be complicit in presenting the Court in a negative light. (There are of course limitations on this belief. Former law clerks who are academics, for example, should and do feel free to criticize the Court’s jurisprudence.)
The norm, if not internalized, is enforced through extreme peer pressure that continues long after the clerkship ends. The two most significant recent disclosures of the internal workings of the Supreme Court -- Eddie Lazarus’s book, Closed Chambers, and the 2004 Vanity Fair article that included information from law clerks about what happened during Bush v. Gore – are prime examples. These episodes, like Armstrong and Woodward’s The Brethren before them, revealed aspects of the workings of the Court that suggested that the justices are, like all humans, at least sometimes driven by political or partisan or even personal motivations. More specifically, these publications were widely perceived (accurately at least to some extent) as being unflattering to the Court as an institution and to certain Justices in particular. Significantly, they both provoked often-vicious condemnation of the law clerks who revealed information.
Some of the most strident condemnation came from other former law clerks. In response to the Vanity Fair article, for example, dozens of former law clerks signed a public letter condemning the disclosures. After publication of Closed Chambers, Ninth Circuit Judge Kozinski, who himself clerked for now-Justice Anthony Kennedy when he was a Ninth Circuit Judge and for Chief Justice Burger, publicly declared that he would not sit through oral arguments presented by Eddie Lazarus, then an Assistant United States Attorney in California. Former law clerks suspected of having provided information to Vanity Fair continue to be pilloried (read the comments to the post if you follow the link). Even when couched primarily in terms of the duty of confidentiality, I think that these criticisms are more accurately understood as also being about breach of loyalty.
In light of these strongly-enforced norms, it’s not at all surprising to me that law clerks are reluctant to speak to researchers. Despite Artemus Ward's plea, I suspect many law clerks do not draw the distinction between academics and journalists for the purpose of deciding whether to respond to questions. And the publication of academic work that is critical of the role law clerks play, of individual justices, or of other aspects of the Court, is unlikely to prod law clerks to rethink that distinction. (On the other hand, it might be possible to persuade Justices of the distinction, which could lead to more openness on the part of law clerks.)
All of this is by way of explanation. As I said at the beginning, I’m skeptical of absolutism. But it is, I believe, important to understand where the skittishness comes from. It’s not simply the duty of confidentiality. As Judge Kozinski puts it, law clerks become members of a very special family. In that light, unflattering disclosures are more than mere breaches of a duty; they are a profound betrayal. This perspective also, I believe, explains why the almost complete public silence about law clerks’ experiences and observations while clerking is more accurately described as almost complete public silence except for general discussions or flattering tributes. There is no breach of loyalty, no betrayal, in making the Court and the Justices look good.