The Volokh Conspiracy

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Volokh Conspiracy

When, if ever, should law clerks betray their bosses?


[This post contains some general spoilers for David Lat's new book, Supreme Ambitions, which I reviewed here.]

Peter Conti-Brown summarizes and criticizes the implicit moral of Lat's book. First, the summary:

The problem is the book's crowning drama (and here come the spoilers, so stop reading if you haven't read it yet and want to be surprised): a clerk's moral crisis in following a judge's instructions and decision to betray the judge's confidence by going to another chambers to seek vindication. More specifically, the main protagonist, law clerk Audrey Coyne, discovers a jurisdictional defect in a case whose opinion on the merits her judge very much wants to issue, purely for her titular "Supreme Ambitions," that is, desire to be appointed to the Supreme Court. The jurisdictional problem is that appellants' failed to file their notice of appeal within the thirty days required by the Federal Rules of Appellate Procedure (in the case of the decade, I might add), a fact no one else spotted (did I mention this was the case of the decade?). Audrey is a very dutiful clerk, though, and notices this error when she does her final, post-circulation fact check, and immediately brings it to the judge's attention. In a dramatic move, the judge takes her to the roof (a detail I loved; I imagined the judge's fear of wiretaps or spies in chambers or something) and tells her to file the opinion anyway, the lack of appellate jurisdiction be damned. Audrey has a crisis of conscience, leaks the jurisdictional defect to another clerk in another chambers, and the opinion gets tossed.

And the criticism:

This denouement-which, by the way, Lat wants us to celebrate and admire-turned my stomach. Here's why: while Lat has chosen his jurisdictional problem carefully, I can't get behind the celebration of a 22-year-old barely lawyer concluding that her judgment is superior to her boss's-with decades of experience and, much more importantly, a presidential commission-to the point of seeking to achieve the desired result from another chambers. Again, Lat wants us to conclude that Judge Stinson is very baldly careerist and has violated her own judicial commission (and her own plainly stated views in the importance of jurisdiction and judicial restraint). I'm on board: Judge Stinson acts abominably. But it's not easy for me to conclude that a law clerk is the one to police the jurisdiction-bending careerism of her judge, for two independent reasons. First, in the eyes of a law clerk less than a year out of law school, some very plain errors of law may be much more complicated than they seem, even in questions of easy jurisdictional dispositions. Second, no one in the democracy vetted, appointed, or confirmed Audrey Coyne to exercise this kind of judgment. They did, however, do this for her judge. If the President and Senate made a mistake-and they've made some whoppers over the years-that's on them. If you want to expose them as frauds, or imbeciles, or lacking integrity, make judicial appointments an election issue and make loud arguments about the kinds of people you want to see on the bench and the kind of people you don't. That makes great sense to me. But clerk justice from the inside strikes me as an ugly and unethical arrogation of authority.

I totally agree with much of what Peter says: being a good law clerk requires a great degree of loyalty. The clerk's relationship with their judge and access to internal deliberations depends, crucially, on the understanding that the clerk's job is ultimately to help and not to undermine their judge. Moreover, junior law clerks should be meta-rational and understand that things that seem obvious to them might be non-obvious, or even wrong, to those with more wisdom and experience.

Indeed, these are probably good lessons for almost all lawyers. That's why the model rules of professional responsibility allow subordinate lawyers to follow their bosses' "reasonable resolution of an arguable question of professional duty."

But it is not quite so obvious that a law clerk's duty of loyalty is absolute. Peter raises the specter of "clerk justice from the inside," but the scenario in Lat's book is actually cleverly designed to make Audrey's actions distinguishable from a general law-clerk-gone-rogue.

First, the substance of Audrey's betrayal is pretty narrow. She doesn't leak any confidential information and doesn't speak to the public—she speaks to one other judicial employee about an objectively verifiable fact about what's in the record. That narrowness is important because it means that Audrey's actions can work to the detriment of her boss only if other judges ultimately agree with and ratify her actions. (This allays Peter's concern about a commissioned judge being overruled by a non-commissioned employee; Judge Stinson's opinion gets tossed only once other commissioned judges agree that there is a fatal jurisdictional defect.)

Second, Judge Stinson does not put forward even a colorable argument in favor of jurisdiction. If this case arose under the Model Rules of Professional Conduct, Audrey probably wouldn't even be allowed to defer to her boss in these circumstances, because Judge Stinson's position isn't reasonable. Even without the Rules, the usual reasons for deferring to another's legal judgment are weakened when the other isn't exercising their legal judgment. So while I think Peter's criticisms deserve to be taken very seriously, I also think the scenario has to be analyzed in this light.

All that said, there are still reasons to adopt a hardcore no-exceptions rule of law-clerk loyalty. For instance, we might think that law clerks lack the judgment to know when circumstances like the above are in play. Or we might think that judges deserve to have employees who will be loyal even when the judge is unreasonable, because that is the only way to generate the trust that the judge-clerk relationship requires.

Alternatively, we might think that even if in extreme circumstances disloyalty can be ethical, law clerks who act like Audrey should nonetheless expect to be punished. Indeed, I have wondered if Supreme Ambitions would have been a stronger, and more profound, book if it had a slightly less happy ending. In the real world, law clerks who betray their judges do not get to be law clerks a second time.