The Supreme Court's Excessive Secrecy: Why It Isn't Merited

By EDWARD LAZARUS
Thursday, Sep. 30, 2004

In the October issue of Vanity Fair magazine, David Margolick offers a deeply troubling expose of how the Supreme Court actually decided Bush v. Gore. (In that notorious 2000 decision, as readers will doubtless recall, five conservative justices stopped the vote recount in Florida and thereby handed the presidency to George W. Bush.)

The article is the first to penetrate the Justices' aggressive efforts to maintain the secrecy of their internal deliberations in this case. Margolick succeeded in getting several former Supreme Court clerks from 2000 to describe precisely what happened. Based on their reports, Margolick tells the disturbing story of how a highly polarized and politicized Court stumbled inexorably towards an intellectually indefensible decision -- in arguably the most important case of our time.

The article shows that Justices Antonin Scalia and Sandra Day O'Connor essentially pre-judged the election case. It explains how, with a vital assist from Justice Anthony Kennedy, they drove the Court towards a decision handing victory to the candidate with whom they were politically aligned. And it reveals that critics' worst fears were factually true: Five unelected justices, by a single vote, hijacked a presidential election at least in part out of fear that, left unchecked, the Florida recount would put Al Gore in the White House. The Justices weren't applying the law; they were choosing a President.

Margolick's article has generated a firestorm in the community of Supreme Court watchers. Unfortunately, this firestorm has little or nothing to do with the article's extremely important substantive allegations.

Instead, the firestorm has focused on what should be a minor side issue: Were Margolick's law clerk sources, on whom the Justices had imposed an oath of permanent confidentiality, justified in breaking that oath to speak out about Bush v. Gore?

Former Attorney General Richard Thornburgh, former Deputy Attorney General William Barr, former Solicitor General Theodore Olson, and close to 90 former law clerks -- mostly right-wingers -- have written a letter excoriating the clerks who spoke to Margolick as traitors to the Court and to their profession. Several U.S. Senators have now gone so far as to call upon the Senate Judiciary Committee to look into these breaches of judicial confidence.

These critics of Margolick's clerk sources are asking the wrong question. Reasonable people may reasonably disagree over when a former clerk is justified in breaching his duties of confidentiality to the Court. Surely, a strong case can be made that Margolick's sources were justified in enlightening the American people about how five unelected justices, by a single vote, hijacked a presidential election at least in part out of fear that, left unchecked, the Florida recount would put Al Gore in the White House.

After all, Bush v. Gore was no ordinary case. And the facts the law clerks decided to reveal were no ordinary facts. To the contrary, the clerks chose to expose a Court that was teetering on -- arguably even falling over -- the brink of constitutional illegitimacy. And the clerks weren't the only ones who interpreted the facts this way: Several Justices shared their view

But the real issue in all this has nothing to do with this particular story or these particular clerks. The real issue here is whether the Supreme Court is justified in its aggressive attempts to suppress investigation of its internal decision-making process. And the real scandal here is the way most of the Supreme Court press corps abets this enterprise by all but abandoning the concept of investigative reporting.

Court Secrecy: Exaggerated Beyond Any Real Necessity

Even in everyday cases -- and this was no everyday case -- Supreme Court secrecy is far more complete than necessary. Indeed, the Supreme Court demands far greater secrecy than that enjoyed by the elected branches of our government -- when, given its unelected, life-tenured personnel, it ought to demand far less.

There is no Freedom of Information Act for the Supreme Court. There are no open sessions when it comes to actual decisionmaking. There are no "Government in the Sunshine" laws for the Court.

The "Chilling Effect" - Which Has Proven Limited - Does Not Justify Secrecy

Reasons for the Court's high level of secrecy are given, of course -- but they are unpersuasive.

Some claim that public revelation of the Court's internal deliberations -- even years after decisions are rendered -- will "chill" the free flow of ideas between clerks and their justices and among the justices themselves. This may be true to some extent: Some people may be less willing to share their candid views about sensitive issues if they know that these views will become public down the road. But this concern is easily exaggerated:

Just look at the executive branch. It has become commonplace for presidential aides and other high ranking officials to write memoirs including detailed revelations about internal executive branch decision-making. Yet open and frank advice-giving within the Executive Branch has hardly come to a grinding halt.

To the contrary, such firsthand internal accounts are generally considered an important tool for maintaining government accountability and for assessing, in hindsight, the substance and process of contemporary policymaking. Whatever minor chilling effect these publications may engender (if any) is overwhelmed by these affirmative public benefits.

Is advice giving or the exchange of ideas within the judicial branch somehow more fragile or more in need of protection than advice-giving in the executive branch? I can't think why.

If anything, executive branch deliberations would seem to be more sensitive than the judicial deliberations. Exchanges of views inside the court ordinarily don't touch on issues of national security. Nor do they involve the sensitive, strategic trade-offs that executive branch officials have to make with legislators, or between competing agencies.

Generally, deliberations within the Supreme Court focus on issues of high abstraction: How should certain precedents be read? What is the best reading of a particular statute? How should the concept of due process of law be applied to a given set of facts?

In discussing such things, will clerks or justices really start looking over their shoulders if they think their candidly expressed views may someday become public? I'm highly skeptical.

And perhaps if clerks do need to look over their shoulders, they should think about why that is: Is it because they know their views will be looked upon with horror and scorn by future generations? If clerks and Justices don't have the courage of their convictions -- and the courage to make these convictions public -- it may be because even they know, at some level, that their convictions are wrong, illegal or unethical. If they know their children -- and their children's children -- will judge them ill, shouldn't they take that into account?

As an empirical matter, experience tells us that revelations about the Court's internal workings have not had a material effect on the exchange of ideas within the Court. Bob Woodward's famous expose The Brethren was published 25 years ago. It was full of Court confidential conversations, gossip, infighting and negative characterizations. Yet the frank exchange of ideas within the Court community survived Woodward's book.

More recently, I published an insider account of the Court under Chief Justice William Rehnquist, Closed Chambers. Again, the Court community has survived -- and the Justices and clerks have spoken candidly enough, inside the Court, to be embarrassed by Margolick's revelations.

If there were truly a "chilling effect," then there would be no scandal when clerks have periodically spoken out -- for there would be nothing scandalous to report, and all would be sanitized.

Published Opinions Are No Substitute For True Decisionmaking Opennesss

Besides the "chilling effect," defenders of Court secrecy tend to cite the fact that the Court supposedly is open in that it issues opinions giving the reasons for its decisions to the public -- whereas other branches supposedly often do not.

The brilliant Justice John Paul Stevens recently made this very argument. Unfortunately, even Justice Stevens makes mistakes. And upon closer examination, this argument doesn't pass the laugh test.

To start with, it simply is not true that the other branches of government do not give public explanations for their actions. Congress, for example, routinely accompanies new laws with elaborate legislative histories explaining the purposes and reasons behind their enactment.

Ironically, many of the justices routinely denigrates the value of such legislative statements -- insisting on focusing exclusively on statutory text. Yet at the same time, they ask the public to accept their stated reasons for judicial decisions at face value.

Bush v. Gore presents an excellent example of why the "just read our opinions" approach to judicial accountability is so problematic. The majority "per curiam" opinion in Bush v. Gore is based on a theory of the Constitution's Equal Protection Clause that is -- as commentators have pointed out ad nauseam -- transparently unworkable. In light of Margolick's reporting, we now can be pretty sure that almost all the Justices shared this dim view of the Equal Protection reasoning. Indeed, it may be that only Justice Kennedy, who minted the Equal Protection argument, actually was sincere in deciding the case on this basis.

Granted, the Court's published opinions may be an accurate guide to the justices' decisionmaking in many cases. But in other cases -- and these, not coincidentally, tend to be the hard cases, and the controversial cases, the cases that really matter -- the opinions, instead, sometimes mask a hidden set of justifications and strategies.

For this reason, the mere publication of opinions in no way qualifies the Supreme Court as the most public of our governmental institutions. Nor should the issuance of those opinions immunize the Court from internal scrutiny. The question of whether the Supreme Court is properly performing the function assigned it in our democracy cannot be answered solely by reference to the Court's public statements.

The reason is this: We grant extraordinary authority to this unelected arm of government precisely because we think that its process of decision -- deliberative and significantly removed from political and partisan concerns -- elevates its ultimate judgments above those of the elected branches. Unless we achieve some window into the Court's internal decisionmaking, we have no way of evaluating whether the Court is, in fact, living up to this constitutional trust.

If we think that the Court should be accountable in any way -- even accountable for only the very worst breaches one can imagine -- then we cannot live with a cloak of total secrecy over its decisionmaking.

How the Press Corps Aids and Abets Excessive Supreme Court Secrecy

To make matters worse, rather than decrying Court secrecy, many reporters respect it as if it were sacred law. Consider the Margolick piece. Of mainstream Court reporters, only Tony Mauro of the Legal Times has picked up on Margolick's startling revelations.

The kind of investigative reporting that makes newspapers proud -- and famous -- is virtually unknown on the Supreme Court beat. Merely attending oral arguments and the Justices' public speeches is not investigative reportage. Merely asking law professors what given decisions mean, and why they are important, is not investigative reportage. Nor is chronicling which Justices enjoy the opera, and which prefer the symphony.

Imagine if business reporters only read companies' 10-Ks, attended the shareholders meetings at which they announced their profits, and spoke to analysts about what the 10-Ks and announcements meant. Imagine how lifeless, and useless, business reporting would be. What gives life to business -- and science, and legal -- reporting is independent investigation, not the scrutiny of carefully-crafted public explanations.

Reportage means reporting facts. And it is law clerks who are the sole sources reporters can turn to for the actual facts about how this immensely powerful branch of a supposedly democratic government makes its decisions. We ignore those facts at our peril. And we should not be vilifying those brave enough to provide these crucial facts. If law clerks do not speak, we will never know.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.