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Know-It-Alls Who Say Nothing

A SCOTUS clerk never tells.

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On Thursday evenings when the Supreme Court is in session, its clerks host one of the world’s most rarefied happy hours, gathering for drinks in the building’s cafeteria, or, when the weather’s nice, in one of the Court’s four magisterial courtyards. Normally, the happy hour is open to the 40 or so clerks and their invited guests. But word is that lately it’s become even more exclusive: Since early April, the rule has been no outsiders allowed whatsoever.

The rumored new policy (a Court spokesperson would neither confirm nor deny it) is a result of the pending ruling on Obamacare—which, although not expected to be handed down until late June, was in all likelihood made on March 30. That’s when, two days after oral arguments, the justices met privately to cast their votes. Since then, as the case’s majority and dissenting opinions have been drafted and circulated among the justices, their clerks have been made privy to information of historic magnitude. And yet, unlike so many other secrets in Washington, this one—like nearly all SCOTUS business—has stayed that way.

At the beginning of each Court term, the chief justice reminds the clerks of their “Code of Conduct,” which holds that they must “never disclose to any person any confidential information received in the course of their duties.” According to sources, even when their happy hours aren’t on lockdown, clerks eat their lunches in a separate room of the cafeteria, lest their chatter be overheard by other diners. Drafts of opinions, along with any legal briefs that have been marked up in the process of preparing those opinions, aren’t shredded, but instead placed in “burn bags” for incineration. But the Court’s secrets would likely stay safe even without these rules, for reasons having to do with the culture of Washington. Of all the reasons people in D.C. leak information to reporters, the most human is the desire to show just how important and in-the-know you really are. (This desire was felt particularly acutely by the House Republican press aide Kurt Bardella, who showed how important and in-the-know he was, and brought himself much grief, by BCC-ing a New York Times reporter on many of his e-mails to other journalists.) But because everybody already knows they possess all its secrets, the Court’s clerks are immune to that impulse.

Which is why, when I reached out to friends and acquaintances who are former clerks, I was greeted with mostly silence. Even my father, who clerked for Chief Justice Warren Burger in the early seventies, clammed up. As one of the few former clerks who did talk to me explained, “For the rest of your life you can hold yourself out as a Supreme Court clerk, so the least you can do is keep your mouth shut.” Then this former clerk, who’d worked on the Court more than a decade ago and knew absolutely nothing about the Obama­care decision, added: “God, I can feel my pulse starting to race talking to you right now.”

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