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Correction to This Article
An article in the Oct. 17 Style section misspelled the name of former Supreme Court law clerk Eric B. Wolff.

In Court Clerks' Breach, a Provocative Precedent

By Charles Lane
Washington Post Staff Writer
Sunday, October 17, 2004; Page D01

The inscription on the front of the Supreme Court building says "Equal Justice Under Law," but the court's motto could just as easily be "What Happens Here, Stays Here." In a town where confidential information travels fast, the justices protect their internal deliberations fiercely -- and, usually, successfully.

But in the October issue of Vanity Fair magazine, former Supreme Court law clerks from the court's 2000-01 term speak out -- under cover of anonymity -- about what they saw behind the scenes during the fateful case of Bush v. Gore.

Theodore Olson, attorney for George W. Bush, before the Supreme Court in December 2000. (William Hennessy -- AP)

That case, decided by a 5-4 vote, ended the contentious recount in Florida, thereby giving the presidency to George W. Bush.

Writers David Margolick, Evgenia Peretz and Michael Shnayerson recount the views of former clerks to liberal justices who opposed the ruling. Those clerks contend that the decision was a rank exercise in partisanship by conservative Republican justices.

Lawyers are buzzing -- but the buzz centers less on the article's content than the fact that some of the brilliant, ambitious young men and women who work for the justices broke their vow of silence.

"Since 'The Brethren: Inside the Supreme Court' [the 1979 Supreme Court exposé by Bob Woodward and Scott Armstrong], I don't think there has been another case where law clerks spoke so openly to the press about the inner workings of the court," says Noah Feldman, a professor of law at New York University and ex-clerk for Justice David H. Souter. "I'm shocked."

The justices have had no public reaction. Chief Justice William H. Rehnquist declined a request to comment for this article.

The Vanity Fair sources do not deny the importance of in-chambers confidentiality, a lifetime obligation spelled out in the written code of conduct that all law clerks pledge to uphold when they come to the court. They simply felt bound by a higher duty.

"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," one clerk told the magazine. "Our secrecy was helping to shield some of those actions."

Most of the Bush v. Gore clerks aren't talking to the press, even to comment on the article's accuracy, which, as several pointed out privately, would require them to reveal confidential information. But their private comments about the leakers tend to break down along partisan lines, with conservative clerks condemning them and liberals expressing understanding, if not support.

Reaction from others followed a similar pattern.

"The real question is less 'Did these clerks do something wrong?' than 'Is the court right in imposing a lifelong omertà on clerks?' " says Edward Lazarus, a critic of Bush v. Gore who caused a stir of his own in 1998 with a book based in part on his experiences working for the late Justice Harry A. Blackmun.

"There's nothing outrageous about what they've done," says a former clerk for a liberal justice, who asked not to be named because of his own concerns about his relationship with other clerks and the court. "It's in the spirit of whistle-blowing if not actual whistle-blowing."

But an open letter in the Sept. 27 issue of Legal Times from 96 mostly conservative former law clerks and lawyers who practice before the Supreme Court branded the leaks "conduct unbecoming any attorney or legal adviser working in a position of trust."

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