Bush v. Gore, Vanity Fair, and a Supreme Court Law Clerk's Duty of Confidentiality

Georgetown Journal of Legal Ethics, The, Summer 2005 by Lane, David

INTRODUCTION

The Path to Florida,1 a Vanity Fair magazine article, divided the legal community much like the Supreme Court's Bush v. Gore decision had four years earlier. The article created a buzz of controversy,2 not only because it provided a back-stage glimpse into the workings of the United States Supreme Court during the tumultuous 2000 presidential election, but also because former Supreme Court law clerks provided some of the article's juiciest tidbits.3

The Path to Florida is not the first time former Supreme Court law clerks have spoken out about events inside the Court,4 nor will it be the last.5 Each time former clerks go public, the legal community reacts in a predictable pattern. The Path to Florida was no different. Many members of the legal community who expressed an opinion on the matter were aghast that the former clerks had violated the duty of confidentiality owed to their former bosses by talking to Vanity Fair writer David Margolick.6 Fewer looked upon the former clerks' actions with sympathy,7 or, in rare cases, outright approval.8

When the former law clerks spoke to Margolick, they surely knew they would incur the wrath of many in the legal community. According to Margolick and his co-authors, each of the former clerks signed a confidentiality agreement upon accepting employment at the Supreme Court.9 Aside from the duty imposed by the signed agreement, the clerks were, perhaps even more importantly, subject to a duty of confidentiality dictated by Supreme Court tradition. It is not unusual for commentators to use rhetoric suggesting an almost religious duty of law clerks to keep confidential the workings of the Court.10 In 1989, the Court codified the clerks' duty of confidentiality with the publication of The Code of Conduct for Law Clerks of the Supreme Court of the United States ("Code of Conduct"). ' 1 The Court updated the Code of Conduct in 1998.12 According to some, the former clerks who spoke with Margolick did not just violate the oath of "complete confidentiality ... and loyalty" mandated by the Code of Conduct,13 but shook the very foundations of the Court.14

The former clerks mounted a preemptive defense of their actions, explaining why they felt justified in talking to Margolick:

[B]y taking on Bush v. Gore and deciding the case as it did, the Court broke its promise .... "We feel that something illegitimate was done with the Court's power, and such an extraordinary situation justifies breaking an obligation we'd otherwise honor .... Our secrecy was helping to shield some of those actions."15

The former clerks' reasoning suggests that they not only felt the Court's actions released the clerks from a duty of confidentiality, but that they felt an affirmative duty to speak out about what went on inside the Court during Bush v. Gore. By not doing so, they reasoned that they would have contributed to injustice perpetrated by the Court. The former clerks felt compelled to inform the public, holding the Court accountable for its allegedly unprincipled actions.

In this Note, I consider the nature of a Supreme Court law clerk's duty of confidentiality. I consider whether the former clerks who spoke with Margolick about the events surrounding Bush v. Gore were justified in talking on the grounds that they offer. More broadly, I consider whether, as critics suggest, stories told by those who have worked in the nation's highest court really threaten the ability of the Court to do its job effectively. Should Supreme Court law clerks be bound by a strict, unforgiving oath of confidentiality?

I. THE PATH TO FLORIDA

The Path to Florida portrays the Court as a forum of political wrangling and unprincipled decision-making.16 The article paints the conservative justices in a

particularly unflattering light. Justices Rehnquist, Kennedy, O'Connor, Scalia, and Thomas are portrayed as partisan actors.17 Justice O'Connor is accused of deciding Bush v. Gore before the case was concluded, and then searching for a legal justification for her position.18 One former clerk dispenses with legal analysis, and simply calls the majority's opinion "typical Kennedy bullshit."19 Justice Scalia, who has denied criticizing the opinion, is said to have shared the former clerk's view, allegedly telling a colleague, "[l]ike we used to say in Brooklyn . . . it's a piece of shit."20

II. THE BRETHREN AND CLOSED CHAMBERS: Two NOTABLE EXAMPLES OF FORMER LAW CLERKS GOING PUBLIC

Over the years, more than a few former Supreme Court clerks provided writers with a view from inside the Court,21 but in terms of the sheer number of clerks providing information for a single book, nothing beats The Brethren by Bob Woodward and Scott Armstrong.22 Woodward and Armstrong spoke to more than 170 former Supreme Court law clerks for The Brethren,^ "an account of the inner workings of the Supreme Court from 1969 to 1976."24

The clerks with whom Woodward and Armstrong spoke did so on background, preferring to remain anonymous rather than expose themselves to the criticism which predictably followed the book's release.25 Critical legal commentators immediately descended on Woodward, Armstrong, and the law clerks who acted as the authors' sources,26 and they continued to do so for years after publication of the book.27