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INTRODUCTION
The Path to Florida,1 a Vanity Fair magazine article, divided the legal community much like the Supreme Court's Bush v. Gore decision had four years earlier. The article created a buzz of controversy,2 not only because it provided a back-stage glimpse into the workings of the United States Supreme Court during the tumultuous 2000 presidential election, but also because former Supreme Court law clerks provided some of the article's juiciest tidbits.3
The Path to Florida is not the first time former Supreme Court law clerks have spoken out about events inside the Court,4 nor will it be the last.5 Each time former clerks go public, the legal community reacts in a predictable pattern. The Path to Florida was no different. Many members of the legal community who expressed an opinion on the matter were aghast that the former clerks had violated the duty of confidentiality owed to their former bosses by talking to Vanity Fair writer David Margolick.6 Fewer looked upon the former clerks' actions with sympathy,7 or, in rare cases, outright approval.8
When the former law clerks spoke to Margolick, they surely knew they would incur the wrath of many in the legal community. According to Margolick and his co-authors, each of the former clerks signed a confidentiality agreement upon accepting employment at the Supreme Court.9 Aside from the duty imposed by the signed agreement, the clerks were, perhaps even more importantly, subject to a duty of confidentiality dictated by Supreme Court tradition. It is not unusual for commentators to use rhetoric suggesting an almost religious duty of law clerks to keep confidential the workings of the Court.10 In 1989, the Court codified the clerks' duty of confidentiality with the publication of The Code of Conduct for Law Clerks of the Supreme Court of the United States ("Code of Conduct"). ' 1 The Court updated the Code of Conduct in 1998.12 According to some, the former clerks who spoke with Margolick did not just violate the oath of "complete confidentiality ... and loyalty" mandated by the Code of Conduct,13 but shook the very foundations of the Court.14
The former clerks mounted a preemptive defense of their actions, explaining why they felt justified in talking to Margolick:
[B]y taking on Bush v. Gore...