I’d like to follow up on Professor Shapiro’s comments about the duty of loyalty that law clerks feel towards their justices. She writes: “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,” adding “[t]here is no breach of loyalty, no betrayal, in making the Court and the Justices look good.” The question I would like to pose - what if a justice, or the Court itself, merits the harsh spotlight of public examination and censure? And what are the unanticipated effects of this duty of loyalty on data collection?
Assume that you once clerked for an elderly member of the Supreme Court (hereinafter “Justice X”) whose myriad health problems were slowly but undeniably resulting in mental incapacitation. As the other justices on the Supreme Court maneuvered to force the resignation of your justice, you assisted in the review of cert. petitions, the preparation of bench memoranda, and the drafting of opinions. While your employer once openly disparaged justices who leaned upon their law clerks in the opinion writing process, during your year at the Court he routinely assigned clerks the responsibility for preparing opinion drafts – drafts which were prepared without detailed instructions and were subject to only a cursory review. While you were justifiably proud of your legal training and your intellectual abilities, you often wondered if you had the experience and wisdom to be shaping important principles of constitutional law. As a bonus, you also discovered that despite Justice X’s judicial reputation as the protector of individual liberties and human dignity, that his personal life was a shambles of failed marriages, sexual infidelity, abusive behavior, and financial improprieties.
Flash forward ten years. A researcher has requested to speak with you about your clerkship with Justice X. Specifically, the researcher wants to know what your job duties entailed. What do you do? What are the bounds of your duty of loyalty? Do you remain silent? Do you indignantly deny the rumors that Justice X’s law clerks ran the show during his last years on the bench? Or do you candidly discuss the clerkship experience, justifying the breach of confidentiality and loyalty on the grounds that a law clerk should not be complicit in presenting a justice or the Court in a false light? And what do you do if your duty of loyalty to Justice X is at odds with your duty of loyalty to the Court? Wouldn’t it better serve the Court as an institution if the negative aspects of lifetime tenure were debated? Notice we haven't even discussed whether Justice X's personal life is fair game.
Social scientists are trained to carefully examine their survey data for biases that might be introduced by poorly constructed survey questions or the answers of unwilling respondents. In my research on Supreme Court law clerks, I have actually worried less about low response rates than responses from law clerks who downplay their job responsibilities while exaggerating their employer’s intellectual abilities and moral virtues lest they commit the “profound betrayal” of which Professor Shapiro speaks. Does this happen – you bet. For decades after the death of Chief Justice Fred Vinson, many of his law clerks maintained the fiction that the former Chief Justice drafted his own opinions. Some have argued that Justice Frank Murphy’s former clerks have downplayed the Justice’s delegation of substantive job duties, while I believe that Justice Thurgood Marshall’s law clerks’ loyalty may have produced inaccurate reports of the late Justice’s clerkship utilization practices.
As a former law clerk to both a federal district court and a federal magistrate judge, I appreciate the duty of loyalty of which many former Supreme Court law clerks speak. I wonder – and I would appreciate the insights of my colleagues – whether the duty of loyalty has caused too many clerks to remain silent, or worse, to engage in a sort of revisionist history designed to prop up sagging judicial legacies. Should we be worried about the revelations contained in Vanity Fair or the over-protective behavior of the surrogate sons and daughters of Supreme Court justices?