Bonus 207: The Court's True Transparency Problem(s)
Monday's New York Times scoop on Chief Justice Roberts having employees sign non-disclosure agreements would hit differently if the justices were *remotely* committed to more transparency elsewhere.
Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly “bonus” issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:
As ever, it’s been a busy news week. But I wanted to use today’s bonus issue to reflect a bit on Jodi Kantor’s fascinating scoop in Monday’s New York Times—that Chief Justice Roberts has started requiring all of the Court’s employees to sign non-disclosure agreements. The piece has touched off a deeply predictable set of reactions—with the Court’s defenders rushing to suggest that this is not only perfectly fine, but perhaps even a prudent measure after episodes like the May 2022 leak of the draft majority opinion in Dobbs; and with the Court’s critics viewing it as yet another indictment of the current Court and its refusal to hold itself accountable for … anything.
Perhaps surprisingly, I’ll confess to falling in between these two poles. It doesn’t strike me as inherently sinister that the Court is memorializing what was already the very strong unspoken norm about the confidentiality of its internal proceedings—just as I don’t believe, and have never suggested, that the public should have access to anything and everything the Court does. At the same time, part of why Kantor’s story is a story is because we are confronted, almost every week, with the myriad ways in which this Court continues to refuse to undertake even relatively modest reforms to make its work (and the justices’ public output) more publicly accessible—examples of which I’ll get into below the fold. For once, I think the Times’s headline really does tell the story—“How the Supreme Court Secretly Made Itself Even More Secretive.”
Put another way, it would be far easier for a Court that was openly and actively striving toward greater transparency elsewhere to be forgiven for pursuing more (potentially) enforceable secrecy here. But when the only headlines about the Court’s transparency all relate to its absence, it’s understandable that many will make more out of this particular episode than may perhaps be warranted. As with so many other things, it’s the Court’s other behavior that makes it hard to give it the benefit of the doubt here.
For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Supreme Court. For those who are please read on.
