Balkinization  

Wednesday, July 04, 2012

Rumor Has It: What Are the Rules for Supreme Court Clerks?

Neil Siegel

I had thought the rules were what Chief Justice Rehnquist told my co-clerks and me: keep confidential what you learn about the inner workings of the Court, and under no circumstances may you talk to the press. Perhaps there was uncertainty about whether the rules applied always and forever (that is, decades after the clerkship ended). But there was zero uncertainty about whether the rules applied during the very year we clerks were at the Court—or during a good number of subsequent years.

Now it appears that the rules may have changed. Rumor has it that certain clerks in certain chambers were revealing the Court’s deliberations to certain members of the news media while NFIB v. Sebelius was pending and within days after it was handed down. It would sure be illuminating if those responsible would own up to it and let the rest of us know their understanding of the duty of confidentiality that Supreme Court clerks owe the Conference.

Short of that unlikely possibility, perhaps the Court as a whole could issue some clear guidance to clerks past, present, and future. I learned all sorts of things during my clerkship that would be of interest to students of the Court and members of the news media. Surely every other Supreme Court clerk possesses similar information. If some clerks are going to spread rumors about vote switches, other clerks may be well situated to discuss their frequency. If there is a good reason why different rules should apply to different clerks, that reason eludes me.

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