A professor at Gettysburg College last week said she had heard that the Justice Scalia had never hired a single female law clerk.  On several radio shows, I’ve been asked about Scalia and Opus Dei. Then there’s the assertion I hear constantly that Justices Scalia and Clarence Thomas vote in lockstep.

On many controversies (duck-hunting with Dick Cheney, for example), Justice Scalia is guilty as charged. But not on those above:

1. Justice Scalia has, in fact, hired several women clerks over the years, some of whom have gone on to prominent positions in academia, such as Joan Larsen at the University of Michigan. It is true, however, that clerks for a majority of the justices, including Scalia, have been overwhelmingly male (and white) through the years.

2. Justice Scalia is a conservative Roman Catholic who told me the Second Vatican Council (which excised Latin and liberalized the Catholic liturgy) was not on his “hit parade.” He was always looking around for the right place to worship. When his nine children were young, he hauled the clan from their suburban Virginia home to downtown Washington, D.C., for a remaining Latin mass at St. Matthew’s Cathedral and, when living other places, drove miles each Sunday to a just-right church. His visiting mother-in-law once said, “Why don’t you people ever seem to live near churches?”
 Yet, Scalia  is not a member of the secretive Opus Dei. As far as I know, none of the Catholic justices is, although those rumors – accelerated by Dan Brown’s portrayal of Opus Dei in The Da Vinci Code — constantly swirl.

3. Scalia and Thomas are indeed together on many cases (see their joint concurring opinion today in Wilkins v. Gaddy on what constitutes cruel and unusual punishment), but Thomas is more conservative than Scalia and often writes solo dissenting opinions. That happened in the recent case of  Citizens United v. Federal Election Commission (on the disclosure requirements of the disputed law) and in last term’s Voting Rights Act case, Northwest Austin Municipal Utility District No. 1 v. Holder.
 The two justices say they have an easy friendship, and Scalia told me that when they are aligned in dissent, it can have a psychic benefit: “There are times when I think I’ve been a comfort to him and he’s been a comfort to me. Nobody else seemed to see things our way. It’s nice to have a least one other person who you can sympathize with.”

And about Scalia’s relationship with Dick Cheney? The Scalia-Cheney bond – which put the justice in hot water in 2004 when Cheney had a case at the Court and the pair went hunting — traces to the mid-1970s when they both worked in the Ford Administration. Scalia was an assistant attorney general, and Cheney became White House chief of staff. Scalia told me they have remained friendly over the years but not close personal friends, as Scalia has, say, with then-deputy attorney general Laurence Silberman (now D.C. Circuit appeals court judge). Of Cheney, Scalia said, “He knew who I was. He knew my qualifications. He knew I was on the right team.”

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.

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.