Detail of a door at the front of U.S. Supreme Court is seen on March 25, 2022. (Quentin Young/Colorado Newsline)
The firestorm arising out of the recent leak of a draft of the Supreme Court opinion — purporting to eliminate constitutional abortion rights established 49 years ago in Roe v. Wade — has generated fury for different reasons from various quarters.
But the consternation ought to serve another useful purpose: Highlighting the secrecy of how that tribunal conducts its business. While described as “the least dangerous branch” of government by Alexander Hamilton, it is better characterized as the “most secretive of them.” Its lack of transparency translates into absence of accountability.
While differing on the meaning and import of the leaked draft, all segments of the ideological spectrum seem to concur that the secrecy of the high court’s decision-making process — including its deliberations — is sacrosanct.
But should it be?
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The secrecy of judicial proceedings is not of ancient lineage; many deliberations of judicial bodies and decision-makers have in years past been open to some forms of contemporaneous public scrutiny.
But over time, secrecy has attached to jury deliberations. This is an understandable way to encourage participation by laypersons, facilitate the exchange of views in the jury room undeterred by external reactions and influences, and free the jurors from being involuntarily subject to intrusive inquiries.
But for judicial officers, the reasons for secrecy are not as clear-cut or supportable. As public officials, they should conduct their business to the maximum extent feasible in the purview of the public they serve, and which pays them, rather than shrouded in secrecy.
The most secret of all
The high court has been at the pinnacle of this pattern of secrecy.
It’s a supreme irony that the lamentations about how the leak has breached the privacy of the judicial process comes in connection with an apparent dismantling of privacy rights of women and, perhaps, a harbinger for all others, too.
For decades, the justices in the nation’s capital have paid homage to opacity while resisting any coverage of its work by audio or visual means. It took the pandemic to open it up a slight bit to remote telephone scrutiny.
But it has continued to ban any televised coverage of its proceedings, based on its antiquated and outmoded fears of grandstanding by attorneys, technical glitches in the coverage, and other excuses that have all been belied by decades of televised court coverage of the much more sensitive, volatile, and potentially prejudicial trial court proceedings, including cases against Minneapolis police and other high profile criminal cases elsewhere.
The public could benefit greatly from observing the proceedings of the high court. It could not only be educational for the public, but could boost the sagging credibility and image of the tribunal, which are reeling these days.
So, instead of hand-wringing about the leak, here’s a radical response to it that’s apropos of a radicalized court: Deliberations of the jurists should be subject to public scrutiny.
It would be interesting and informative if the public had access to audio and maybe even video coverage of the deliberations.
The secrecy that the judges relish creates an aura that their decisions have some type of divine origin. Chief Justice John Roberts — who anguished over what he calls the “appalling” leak — characterized the role of jurists in a much more pedestrian term during his Senate confirmation hearing as “umpires,” robotically and impartially calling “balls and strikes.”
It’s clear now, if it wasn’t before, that this baseball metaphor is a naive and dangerously misleading characterization. The general public may still be in the dark, however, given the shroud of secrecy surrounding the court’s decision making, which lets the judges get away with masking the ideological and political nature of their decisions.
The truth is that both ideology and politics are central to many of its rulings on controversial and important issues, and the abortion case seems to lay to rest the myth that the decisions are led by some sort of pure legal scholarship, rather than sweeping ideological and political agendas.
The court’s pattern of secrecy seems to be increasing, as reflected in its growing use of its “shadow docket” to issue hasty rulings in cases without briefing or oral argument by the lawyers or advance media scrutiny of the litigation.
The apoplectic reaction to the leak seems vastly overstated. What would be so wrong if Supreme Court jurists circulate their draft opinions before finalized?
A number of judges — some in federal courts, others in state court and family law tribunals — circulate their “draft” opinions to the attorneys before they are finalized, which allows comments or corrections to factual matters or complex legal issues. While not done widely, the practice has been beneficial in limited circumstances without raising the hackles of lawyers or litigants.
Administrative agencies, which impose rules with the force of law, customarily disseminate their proposed regulations and allow for comments in advance of their finalization.
Removing the shield of secrecy that hides the deliberations and decision making of the Supreme Court would provide a form of reality therapy, stripping away ideological illusions and, perhaps, bolster the stature of the tribunal, which could really use that boost.
The justices surely will recoil at the prospect of the public observing how their decisions are made, reminiscent of the remark by the first German Chancellor Otto von Bismarck that “laws are like sausages; it is better not to see them being made.”
But it might be time to allow the public to see how judicial decisions are “made” in light of the abortion case leak. At a minimum, it should encourage televising Supreme Court proceedings and, after that, opening up their deliberations to public scrutiny.
Opening up judicial deliberations to the public is certainly unconventional, maybe unprecedented. But so is the extinction of a nearly 50 year-old fundamental constitutional right that has been relied upon by generations of women. While the notion of accessible judicial deliberations seems way out of the mainstream, it’s no more extreme than the way the current court is secretly carrying out its business.
The writer is a Twin Cities Constitutional law attorney and member of the Supreme Court bar.
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