I appreciate Todd Peppers’ and Artemus Ward’s responses to my post. But I didn’t say (or mean) that "the journalists are spoiling it for the academics." Rather, I think that most law clerks make no distinction between journalists and academics when deciding whether and how to respond to requests for information. It’s not a distinction I’ve considered myself until now. And to be honest, I remain unpersuaded that it’s the right distinction to make. The fact that academics are less likely to achieve fame and fortune as a result of their work, for example, than are journalists or muckrakers does not persuade me that law clerks should talk to them more freely. Nor do I believe that it is necessarily true that "both clerks and justices have nothing to fear from us poor, dull, eggheads." Although I have not yet read Artemus’ forthcoming book (other than the introduction, which he very kindly shared with me last fall), the press accounts I have seen (those pesky journalists again!) suggest that it is critical of the role of law clerks and Justices’ dependence on them. It may or may not turn out to be a best-seller, but it also is unlikely to reassure those skittish research subjects that there are no downsides to participating in academic work.
More importantly, I do not actually think that these arguments about the difference between academics and journalists are best addressed to law clerks. I think they should be made to the Justices, who might decide to ease restrictions for certain types of academic inquiries. I agree with Chris Drahozal, for example, that the cooperation of the judge in Stephen Wasby’s study was critical to the willingness of law clerks to participate (for those who chose to do so). And I also agree with Artemus that H.W. Perry’s book, Deciding to Decide, is a good counterexample to the more sensationalized accounts. At the same time, however, it’s a good counterexample in part because the subject is a bit dry. (I mean no disrespect – it’s an important book and I’ve relied on it myself in my work.) Yet a similarly scholarly book that described the decline of Todd Peppers’ hypothetical Justice X, however accurately, would not be as likely to persuade Justices and law clerks that they should speak freely. This may be in part because journalistic accounts of the book itself and its most sensational tidbits would undoubtedly circulate widely, but also probably because Justices and law clerks, often quite academic types themselves, are leery of becoming academic, as well as journalistic, subjects. (See Chris Drahozal’s post again for some of the reasons why.)
But I said in my last post that I’d say more about why I’m skeptical of absolutism about law clerk confidentiality. Both Artemus and Todd point to what makes me skeptical. The Court is a public institution. As we all know, it has tremendous legal and political influence, as well as great symbolic power. Of course, this is precisely why journalists, lawyers, historians, and political scientists are all legitimately interested in finding out more about it. Clearly, law clerks and Justices have information and insight that might be very valuable in improving (or understanding) this important political institution in our democracy. On the other hand, the justification for confidentiality -- that Justices need to be able to speak freely with their law clerks without fear of embarrassment -- has some real heft, particularly considering how few people they can in fact talk freely with.
So as Todd’s hypothetical suggests, it’s not obvious who should decide when the Court or a Justice "merits the harsh spotlight of public examination and censure," what criteria they should use to make that decision, or (consistent with what I said above), whether they should make those disclosures to an academic or a journalist. The law clerks who spoke to Vanity Fair, it seems to me, made precisely this calculation. They believed that the Court, or at least some of the Justices, had violated a public trust in Bush v. Gore – and it was for that reason that they decided to share confidential information. I’m curious – do my co-panelists think they were they right or wrong to do so, and if they were wrong would that also be true for Justice X's clerks? Would it have been better for the Vanity Fair clerks to share their information with an academic? Now or in ten or twenty years?
I’ll end with a conundrum. The very secrecy with which the Court drapes itself likely makes occasional negative revelations that much more shocking. Yet those negative revelations make it that much less likely that the Court and the Justices will change their ways any time soon. Does the Court's secretiveness therefore enhance the Court's authority and prestige or undermine it?