The Supreme Court, Law Clerks, and Secrecy (Part II)

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I received enough reaction from the post on that snowy February 10 regarding whether journalists should call law clerks for information that I have a sequel. (See “But Would the Supreme Court Law Clerk Have Taken My Call?”)

University of Texas Law Professor Scot Powe, who clerked for William O. Douglas during the 1970-71 term and whose latest book is The Supreme Court and The American Elite, told me that reporters called him on the direct line into his office at the Court. He was not sure how they got the number. Powe said the reporters sought clarification of an opinion, rather than gossip about behind-the-scenes maneuvering. He said he tried to help when he could, without compromising confidentiality. Other former clerks told me they might have taken a journalist’s call — not on the substance of cases but on some of the social dynamics at the Court, for example, from the clerks’ end-of-term skit or, more seriously, regarding ideological maneuverings by clerks. That latter theme of the late 1980s was brought out publicly by former law clerk Edward Lazarus (who worked for Harry Blackmun) in his book Closed Chambers. Some justices were furious about that 1998 book, which had the subtitle: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.

In my earlier post, I referred to memos filled with apprehension and anger over The Brethren by Bob Woodward and Scott Armstrong. That 1979 classic relied on scores of law clerks and five of the justices for inside information. I’ve collected other internal memos through my years of research that show how intensely justices act in response to any report that lifts the veil.

Sandra Day O’Connor, who served 1981-2006, was among those who reacted most negatively to disclosures. She took the lead with then-Chief Justice Rehnquist in 1990 to try to get retiring Justice William Brennan not to turn over files to researchers. Three years later, she and Rehnquist were among the most agitated when the papers of Thurgood Marshall were opened at the Library of Congress. I was part of the Washington Post team that discovered the documents and used them for a four-part series published in May 1993. The stories about the once-private exchanges among the justices generally made the Court look good. We noted that, “The exchanges are serious, sometimes scholarly, occasionally brash and personalized, but generally well-reasoned and most often cast in understated, genteel language.” Yet the series also revealed internal deliberations, including O’Connor’s changed views and votes on abortion rights.

After the Post series began, Rehnquist drafted a letter to Library of Congress director James Billington that said, “I speak for all of the active Justices of the Court when I say that we are appalled by the Library’s decision to open to the public Justice Thurgood Marshall’s papers….” O’Connor echoed that sentiment in a memo back to Rehnquist and told him, “Perhaps the final sentence could state that the failure of the Library to consult with and to consider all the ramifications and effects of granting such an early release of confidential materials may discourage future grants of judicial papers to the Library of Congress.” Other justices, however, including Byron White and Anthony Kennedy, thought that the LOC had done exactly what Marshall, who died earlier in 1993, had wanted. Those justices would not endorse Rehnquist’s rebuke, and, in the end, the chief justice revised his letter to say he was speaking for only a “majority of the active Justices,” not “all of the active Justices.”

In 2004, the files of the Justice Blackmun were made public at the Library of Congress. They were exceedingly valuable to researchers because, as Linda Greenhouse wrote in her biography of Blackmun, he chronicled “his life and the world around him in astonishing detail.” He saved virtually every piece of correspondence he received — to the chagrin of some of his colleagues, whose personal thoughts can now be copied for 20-cents a page at the LOC. After that, O’Connor said it would be a long time before another justice’s files were open to the public.

Since then, some of the papers of Rehnquist, who died in 2005, have become available at the Hoover Institution on the campus of Stanford University. And as I noted in an earlier post, Justice O’Connor has warned about the opening of her files: “Don’t hold your breath.”

One final note on the subject of bypassing justices and trying to get current law clerks to talk: After my earlier post, I heard from reporters who said they were thinking about being more aggressive about calling clerks. Well, I wouldn’t want that! It goes without saying that I’m not trying to spur anyone to a more competitive advantage. And for any law clerks out there waiting for the call (as the professor who started all this was): Remember me, please.

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