« Applause (well, at least a golf clap) for the NYT | Main | SCOTUS members and results as cartoon characters and themes »

Saturday, September 22, 2007

Best self-debunking line I've read this month

The Jeffrey Rosen, writing in a Sunday's NYT Magazine article about Associate Justice John Paul Stevens, breathlessly informs us:

According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000.

And the way these unnamed one-year transient SCOTUS employees (speaking on a not-for-attribution basis) would know this is ...?

Posted by Beldar at 11:19 PM in Law (2007), Mainstream Media, SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to Best self-debunking line I've read this month and sent a trackback ping are listed here:


(1) jpe made the following comment | Sep 23, 2007 11:00:56 AM | Permalink

Maybe one or more of the justices told them that.

I'm no expert on the court, but I'd expect that the clerks and the justices talk to one another.

(2) clarice made the following comment | Sep 23, 2007 11:57:37 AM | Permalink

Math is so hard.

(3) anduril made the following comment | Sep 23, 2007 1:18:54 PM | Permalink

Well, considering that Breyer recently tried to sic the Senate Judiciary Committee on a few of his new colleagues--Roberts and Alito--it'd be surprising if tensions weren't pretty high. Nobody likes to work with a backstabber and, when the backstabber is one of only nine, relations can't be good.

(4) Beldar made the following comment | Sep 25, 2007 7:45:14 PM | Permalink

But see this, anduril.

(5) Joe made the following comment | Sep 25, 2007 9:49:40 PM | Permalink

Uhh, maybe because law clerks are part of a pretty small DC legal community and they talk to each other?

(6) Beldar made the following comment | Sep 25, 2007 10:55:56 PM | Permalink

Joe: Maybe the nine Justices of the Supreme Court of the United States (average age somewhere well north of 65) share their deepest and most indiscreet thoughts about each other (knowing that as Justices, they'll be working with each other in intimate circumstances for, quite literally, decades) with their one-year temporary employees (average age about 24), detailing for the clerks — year by year — the relative degree of inharmoniousness of the SCOTUS in each year since 2000.

In other words, maybe there's really no difference at all between the nine Justices and the average guest on Jerry Springer. And then the clerks gossip about it.

Or maybe those young, very smart, mostly very immature law clerks, especially when they're gossiping with a legal journalist like Rosen, consciously or unconsciously inflate their own degree of deep personal knowledge and insight, and said publicity-hungry legal journalist publishes their gossip as is it were fact.

I've never been a Supreme Court Justice. I have been a federal appellate court law clerk. And now I'm a grown-up. Believe whomever you want. My point is simply that Rosen, and the gossip of the temporary law clerks upon whom he purports to rely, are not very reliable on this particular topic. But you can make your own evaluation.

(7) CC made the following comment | Sep 26, 2007 8:52:51 AM | Permalink

You were a federal appellate court law clerk and you don't know the difference between "discreet" and "discrete"?

(8) DIG made the following comment | Sep 26, 2007 10:17:59 AM | Permalink

>According to the gossip among Supreme Court law clerks,

>>said publicity-hungry legal journalist publishes their gossip as is it were fact.

I'm not seeing it. It was gossip reported as ... gossip.

I don't know how the chambers you worked in worked, but by the time my clerkship was through, I knew pretty well how my court of appeals judge felt about nearly every other judge on the court and had heard stories about many notable interactions he had had with them. He might not have confided his "deepest and most indiscreet thoughts," but I knew who he had a feud with, who he was formerly close to, when they had a falling out, and why. It wouldn't be surprising at all for a Justice to have told his clerks that there's more tension among the Justices than there has been since Bush v. Gore.

As you say, believe whatever you want, but the statement is hardly "self-debunking," and it wasn't reported as fact, except the fact that clerks are gossiping, and I don't even think you dispute that is likely true.

(9) Beldar made the following comment | Sep 26, 2007 5:51:38 PM | Permalink

CC: Thanks for the pointer, duly corrected.

DIG: Perhaps, as you and others seem to be suggesting, what Rosen intended to write was, "According to the gossip among Supreme Court law clerks, one or more Justices have described the level of tension among them as being higher than at any point since Bush v. Gore in 2000." But that's not what Rosen did write, did he?

Because the clerks are typically only there for one year, they lack first-hand knowledge from which to make any such assessment. If they're gossiping about this, it must either be uninformed gossip, i.e., pure speculation, or else gossip based on second-hand information given to one or more clerks by one or more specific Justices who had a first-hand basis for making such an appraisal.

The latter would be a much more meaningful and newsworthy situation. The alternative formulation I've suggested would have been a much more self-authenticating observation. But Rosen, a lawyer and law professor as well as a legal journalist, didn't write it up that way. That's a further basis for my inference — a reasonable one, although I do not claim it is a conclusive one — that this was based on the clerks' own speculation.

I also submit that the statement's over-generality also supports the inference that this was based on clerks' speculation. If Rosen intended to suggest that every single Justice has a higher "level of tension" with respect to every other Justice, that would strike me as extremely improbable. And that proposition can't literally be true anyway — there are two Justices on the Court now who weren't on the Court during Bush v. Gore in 2000.

What I think actually happened here was that Rosen wanted to say that tensions were increasing among the Justices because that fits the narrative arc he'd like, and then by sourcing it to "gossip among Supreme Court law clerks," he figured he could shield it from any serious vetting. I'm not saying he completely fabricated this; maybe he got head-nods from two or more clerks. Nevertheless, written as it is written, it still strikes me as an extremely unreliable assertion that deserves to be given little, if any, probative value by anyone interested in learning about the Court.

(10) DIG made the following comment | Sep 26, 2007 8:57:46 PM | Permalink

Thanks for the response Beldar. It convinced me that this first time read of one of your posts should be my last. Frankly, your response does not reflect well on you, and makes you appear uninformed.

So you think the clerk gossip originated with Rosen or was based on their spectulation. Keep that last word in mind and reread your own post about what you think really happened and what is in the clerks' minds. Who's speculating now?

Gossip or even spectulation about a person by someone who works with that person is far more likely to be reliable than spectulation by someone who doesn't. Unless you're a SCOTUS employee and have an opinion about the tension level that's contrary, the clerk gossip get's the nod over your observations, which are based on, well, your own sense of how things should be, apparently.

The comments to this entry are closed.