I could write about great snowstorms I have known, from Chicago in 1967 to Washington, D.C., in 1996 (a journalistic favorite because Chief Justice Rehnquist insisted on starting oral arguments right at 10 a.m. before all justices had made it in) and then declare how these storms don’t hold a candle to what’s happening now in the nation’s capital. (A stunning 54.9 inches for the winter!) But everyone has a blizzard tale this week, so on to something from the law school circuit:
A former Supreme Court law clerk who is now a professor asked last week: Why don’t news reporters call law clerks and ask for information on cases? When he was a law clerk, he said to me and the listening students, no journalist ever telephoned.
Now, to anyone who has never been associated with the Marble Palace, this might seem a perfectly logical question. Reporters call people for information all the time, right? But this distinguished professor, who was a law clerk to Thurgood Marshall, knows about the usual code of silence among the clerks. He knows that clerks don’t like to be seen talking to reporters in the cafeteria, even about the snowfall. Yet, the essence of his question was serious: What kind of news hounds are you if you don’t even try to call the clerks? He also stated – correctly — that the Supreme Court press corps has traditionally been known for its legal analyses on the cases and not for investigative reporting on the justices.
Our press corps has taken hits through the years for not being more aggressive, and the professor had a point—to an extent. I call former law clerks all the time and have gotten valuable information through the years. But clerks still on the job, experience has taught me, are too anxious to talk. I admitted I hadn’t tested this view in years, but it’s partly because I’ve built up relationships with justices and am less likely to consider turning to current clerks.
Of course, no one can talk about clerks’ talking-out-of-school (and what a reporter might get) without considering The Brethren, the juicy behind-the-scenes account of Bob Woodward and Scott Armstrong that relied heavily on law clerks. When I was going through the papers of the late Justice Lewis Powell (a treasure trove at the Washington and Lee University law school) for research on Justices O’Connor and Scalia, I found how perturbed justices were with the clerks – and to a lesser extent themselves – when The Brethren came out in late 1979. The book offered an unprecedented view of the legal maneuvering and petty bickering of the justices on key cases in the 1970s, from abortion to the death penalty. Woodward and Armstrong said scores of law clerks and five of the nine justices had provided them with information.
“This whole episode,” then-Chief Justice Warren Burger wrote to Powell as pre-publication rumors were spreading, “illustrates why we … make a mistake in allowing staffers here to talk to anyone outside.” Each June, near the end of the term, Burger, who came off as particularly arrogant and petty in the book, used to remind clerks that they had an oath of confidentiality.
Because Woodward and Armstrong appeared to have obtained annual term “histories” written in the chambers of Justice William Brennan, Brennan wanted to make sure his colleagues knew he had not been a source for the book. He wrote Powell on January 3, 1980: “I have never met either Woodward or Armstrong. I have never talked to either of them, by telephone or in person. I have not personally delivered or authorized any person to deliver the histories or other materials to Woodward, Armstrong or anyone else. They could only have obtained them from some unauthorized person or persons, for example a faithless law clerk.”
The correspondence regarding The Brethren suggests that the justices who talked believed, at the time, they were conveying serious information to the authors on the Court’s workings. They thought it was the clerks who had traded in gossip.
Powell, who was among the five justices who gave Woodward an interview, wrote to his clerks on January 16, 1980: “I am sure you are concerned by the poor light in which the book places Supreme Court clerks. Much emphasis has been placed on the fact that the authors claim to have interviewed 170 clerks, with no identification of those who breached their duty of confidentiality. This casts suspicion on all of the 170. The same also can be said for the anonymous ‘reliance’ on five justices.
“I think most of you know that I talked to Woodward in September, 1977, when he stated, when requesting the interview and repeated when he arrived, that he was not doing investigative reporting. Rather, he planned a serious book on how power is exercised at the highest levels in the three branches of government. I understand this is now conceded to have been a deliberate (and false) cover plan.”
Woodward and Armstrong got the job done, and The Brethren is still in print. I should note that the 1979 book covered cases only through the 1975-76 term. So the authors relied mainly on former clerks for their investigation.
Last week, I concluded my answer to the law professor by asking him: If a newspaper reporter had telephoned while you were clerking, would you have taken the call? No, he admitted. But it still bugged him that no one had even tried.