Thursday, June 21, 2012
Are Clerks Really That Discreet?
As we all wait around in the heat for the ACA opinion, it has occured to me that it is truly stunning that the result hasn't leaked already. The decision must have actually been made months ago. Is it possible that no clerk mentioned what s/he is working on to a spouse? That no spouse with the information mentioned it to a parent or friend, even accidentally? That no parent or friend let it leak to a sniffing journalist or day trader in the community? With an aggressive press corps dying for a scoop, well-connected within the community of people that work in and around the Court, doesn't it seem surprising that a secret could be so well kept?
It could be that I just know lots of loose-lipped people. Yet more important and more sensitive government secrets have leaked, surely. I suppose it could be that even though it has leaked to press people, the corps is too proper and too disciplined by the culture of the profession it is reporting on to actually report what they know ahead of the release. Thoughts?
Try to stay cool.
Posted by Ethan Leib on June 21, 2012 at 10:54 AM | Permalink
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Maybe law clerks are unique among all government employees in that they truly serve a constituency of one (their own Justice); that relationship is so special and close that it creates a deeper loyalty than if you were just working for, say, DHS and never had any contact with Janet Napolitano.
Posted by: Howard Wasserman | Jun 21, 2012 11:00:36 AM
Having been an appellate clerk (albeit not at SCOTUS) I can say that we were all tight lipped about pending cases, and non-published reasoning/thought-process behind the case. It helps a lot that you've got a cadre of people you're working with with whom you can talk about the cases, both your fellow clerks and the judges.
Posted by: Ben | Jun 21, 2012 11:13:42 AM
Very interesting question! The prevailing view in the media, as far as I can tell, is that the mandate will be struck down. If it is struck down, we won't learn much to answer your central question. But suppose the mandate is upheld. I think that would be at least some weak evidence in favor of the view that the truth, if it leaked at all, was rather well contained.
Posted by: Adam Kolber | Jun 21, 2012 11:14:32 AM
As a former Ninth Circuit clerk, I can say that it would never have remotely occurred to me to tell anyone - parents, boyfriend, friends, acquaintances - about what the court was going to do in any pending case. It would have been a flagrant breach of the trust placed in me. I was never remotely tempted to do so. If I had gone to the Supreme Court, this sense of confidentiality would only have heightened.
Posted by: Clerk | Jun 21, 2012 1:00:40 PM
It is impressive that the twentysomething clerks are consistently so mature and principled. Some I think were "remotely tempted." It's okay.
Posted by: Joe | Jun 21, 2012 1:09:48 PM
To put a more cynical spin on Professor Wasserman's point, the "deeper loyalty" that comes from a direct relationship with the justices could also be described as "less anonymity" and therefore "greater accountability." A clerk who leaked the decision would likely be found out, and it would badly hurt their career.
Posted by: AF | Jun 21, 2012 1:16:41 PM
I was interning at one of the circuits that's passed on ACA last summer, and knew what the decision would be a few days before it came out. I told a fellow law student and my mother, but I never would have told anyone who I thought might talk about it. It's hard to keep these things entirely to yourself, but it's easy enough to avoid talking to anyone who might spread them.
Posted by: Anon | Jun 21, 2012 1:25:14 PM
For the last 30 years, no one has leaked that the Planet Earth was taken over by the Pod People, and yet you think it's a big deal that no one leaked the result of a single case for a few months?
Posted by: Orin Kerr | Jun 21, 2012 1:29:10 PM
If I told "my mother" something of import, she would be talking about it.
Posted by: Joe | Jun 21, 2012 1:45:06 PM
The point here is not just about clerks, of course. Think secretaries, food service people, IT, librarians, janitors. Obviously, these people are as morally righteous as clerks. But still: lots of people probably have access to the information.
Posted by: Ethan Leib | Jun 21, 2012 2:05:12 PM
Isn't it an old Sicilian saying that if more than one person knows something, it's not a secret?
Posted by: Jeff Lipshaw | Jun 21, 2012 3:03:14 PM
No one *until now*, Orin. Thanks a lot.
Posted by: Bruce Boyden | Jun 21, 2012 3:32:01 PM
When I clerked for Tom Fairchild on the 7th Circuit, his chambers were in Milwaukee and we would commute down to hear oral arguments. At that time, and I think still today, the judges on the panel for a day would only be posted the morning of the argument. So, knowing which judge would be on a panel on a particular day was valuable information. It screwed up my social life, but I never told anyone, even my mom, when we were headed to Chicago. Maybe that was over the top, but, I guess, I was over the top.
Posted by: Mike Zimmer | Jun 21, 2012 8:12:40 PM
It's something to be praised.
But, as you may recall, when Bush v. Gore went down, some clerks decided that their duty of confidentiality had been discharged because the court had breached its duty to the clerks to decide matters according the rule of law. (I'm not making that up.) Granted, the clerks were speaking to journalists after the ruling and not before it was announced. The details, including the clerks' rationale, were captured in a famous Vanity Fair article.
Posted by: just saying | Jun 21, 2012 8:29:38 PM
So, knowing which judge would be on a panel on a particular day was valuable information. It screwed up my social life, but I never told anyone, even my mom, when we were headed to Chicago. Maybe that was over the top, but, I guess, I was over the top.
Which is amusingly (and admirably) more than some judges will do; I once sat across from an appellate judge on a plane who was perusing panel assignments printed in extremely large type well before it was released to the public.
Posted by: Katie | Jun 21, 2012 9:02:34 PM
Something along these lines DID happen quite recently (not at the Supreme Court, of course).
Terrence Flynn, who (at the time) was the chief counsel to a member of the National Labor Relations Board, allegedly leaked panel assignments and even some draft decisions of pending cases to a former Board member, Peter Schaumber.
Then again, I'm unaware of this ever having happened before at the Board or any other branch of government, so maybe it's the exception that proves the rule...
Posted by: Anon | Jun 21, 2012 9:47:02 PM
I clerked for Justice O'Connor in 1981 and recall the honor/terror all of the clerks felt about keeping information confidential. I think we felt both emotions: each clerk had a great sense of loyalty to the Court, and we knew that a leak would ruin our careers. During my Term, the outcome in one case (a relatively inconsequential one) did leak, and Chief Justice Burger threatened to administer lie-detector tests to all of the clerks to determine if any of us had leaked the information. That didn't occur--I think it's possible that the Court traced the leak to one of the Justices and a lower court judge--but it demonstrates the depth of commitment to confidentiality.
That same commitment (and fear of immediate discharge) applied to other employees with access to confidential information (e.g., the chambers secretaries and messengers). And, at least then, the Justices took measures to assure that other people in the building did not get access to information about opinions. The clerks had a separate dining area to use--when we didn't scurry back to our desks to keep working--specifically so press and food workers wouldn't overhear any chatter. And we were discouraged from using the Court's library for the same reason. The fear was that we might leave notes unattended for a few minutes and a member of the bar could determine something about a case. To discourage us from using the library, we were allowed to order any book we wanted from the Library of Congress, to be delivered straight to our desks. With electronic research, that's probably not even necessary nowadays--and the privilege may not sound so special. But at that time, it was heady stuff for a 25-year-old to be able to snap their fingers and request the Library of Congress to cough up a book. Tended to reinforce our commitment to confidentiality!
Posted by: Deborah J Merritt | Jun 21, 2012 10:47:22 PM
Gossipers are like late people. Both see themselves as doing what comes naturally.
Posted by: Anon | Jun 22, 2012 6:49:11 AM
Leaking information of that magnitude would not only be a gross ethical violation, but an incredibly self-aggrandizing thing to do. We should expect that young lawyers given the privilege of clerking on the Court have the humility to realize that opinions are not theirs to release. Thankfully, I think they do.
Posted by: Cecelia Klingele | Jun 22, 2012 8:54:38 PM
The quality of the clerks depend on the quality of the justice that hired them. So, like the author, I'm surprised aca hasn't leaked to the press yet. Although I should note a certain justice leaked it to the president already.
Posted by: Ids | Jun 23, 2012 10:06:30 AM
When I clerked on one of the circuit courts I didn't take anywhere near the precautions some people here seemed to — I would read briefs on the train and didn't particularly try to hide from my significant other what I was doing. But none of our cases were anywhere near as high-profile as the ACA case, and I certainly didn't share with anyone who would have cared about any of our cases. (To some degree I took my cues from my judge, who was also not that discrete — we would talk about cases and arguments in restaurants, and he didn't seem to mind that someone might overhear his opinion of a case or a colleague on the court.)
Posted by: Anon for this one | Jun 24, 2012 7:02:51 PM