For Supreme Court justices, secrecy is part of the job

WASHINGTON (AP) — Supreme Court Justice Hugo Black was hospitalized in failing health when he gave his son Hugo Jr. an order: Burn the papers. Fearing that the publication of some of his private notes would harm the court or his colleagues, he insisted on their destruction.

“Operation Frustrate-the-Historians,” his wife called it. As for reporters who asked the hospital about his condition: “Don’t tell them anything,” Black told his son.

Black, who served on the court from 1937 until shortly before his death in 1971, is not alone among Supreme Court justices with what may seem like a sometimes extreme desire for secrecy.

Supreme Court justices have long valued confidentiality. This is one of the reasons for the leak of a draft opinion in a major abortion case last week was so shocking. But it’s not just the judges’ work on the opinions they naturally like to keep secret. Judges are also ultimately the gatekeepers to information about their travels, speaking engagements and health issues, as well as the decision makers on whether and when to make their private records public.

Even details about the Supreme Court building itself can be hard to come by. Before the coronavirus hit, the taxpayer-funded structure was used 30 to 50 times a year for private after-hours events by groups who pay for the privilege, but the court declined to provide a full list groups or events. A few years ago, when the iconic red curtains that surround the courtroom were replaced, the court even refused to name the company that carried out the work. The court is also not subject to the federal freedom of information law.

The judges themselves have pushed back against suggestions that they are less than transparent. Answer a question in 2018 As to whether the court should allow cameras to televise their proceedings as Congress does, Chief Justice John Roberts had a simple answer: no. He then defended the court’s practices.

“It’s not like we’re doing this in secret. We are the most transparent branch of government in terms of seeing us do our jobs and explaining to us what we are doing,” Roberts said. When the court makes a decision, the judges usually set out their reasoning in lengthy notices. A court spokesman even once favorably compared the court opening to a “goldfish bowl”.

But Gabe Roth, executive director of court transparency group Fix the Court, said calling the court the most transparent branch was simply wrong. “It’s a laughable statement, and Chief Justice Roberts knows it,” Roth said in an email, calling some of the court’s practices “maddening.”

Even the decisions of the judges are not always well explained. When cases are brought to court urgently and need a quick resolution, a response from the judges often arrives without any reasoning or much accompaniment. Judge Samuel Alito defended last year what has been called the court’s “shadow case”, saying it’s hard to see how the court could handle things otherwise.

The coronavirus pandemic pushed the court to be more open in a way. Before the pandemic, a member of the public who wanted to hear a live argument had to line up in court for hours and sometimes days, or pay someone else to wait, to get one of the reserved seats in the audience. But when the court began to plead by telephone because of the pandemic, he started making audio available live.

While court proceedings are more public, the judges themselves still like their privacy. While modern presidents have traditionally released the results of an annual physical examinationjudges make their own decisions regarding the disclosure of health information.

Some are more open than others. Justice Ruth Bader Ginsburg has released quite a bit of health information through multiple cancer episodes. She still waited four months in 2020 to find that her cancer had returned. That year, Roberts spent a night in a hospital after falling and needing stitches. His injury was not revealed until the following month, and only because the Washington Post learned of it.

Until last week’s leak, one of the biggest legal mysteries of the year involved the hospitalization of Judge Clarence Thomas. The court announced in late March, days after his admission, that Thomas had been hospitalized after experiencing “flu-like symptoms”, and was diagnosed with an infection. The court ruled out COVID-19 but did not give further details about Thomas’ illness or why he was hospitalized for nearly a week, days more than expected. If the judges had not been set to hear arguments after Thomas was hospitalized, making his absence evident, it is not clear that anything was ever released.

As for when judges agree to speak to groups, it’s usually up to the group to publicize the event. Last week, for example, as usual, the court did not make public the fact that Roberts and Thomas were talking in Atlanta. Sometimes the events are broadcast live or recorded, sometimes not. Sometimes the public is invited, sometimes the journalists are not.

Judges’ practice is similar to that of Congress, where the schedules of senators and representatives are not open to the public or cannot be obtained through most routine records requests. The President, on the other hand, publishes a daily public calendar, and his private calendar is recorded for history. Who visits a judge in court is also not public, unless the visitor makes it public.

When it comes to judges’ papers, the records created as they decide cases, write opinions and communicate with their colleagues are considered the property of judges, which they can do with as they please. want. Judge Thurgood Marshall’s papers were made public when he died. But retired judge David Souter donated his papers to the New Hampshire Historical Society with the promise that they would not be made public until 50 years after his death.

Possibly channeling Judge Black, Souter reportedly told the company’s executive director, “I have an incinerator outside my house, and either you accept 50 years after I die or they go into the incinerator.


Associated Press writers Lisa Mascaro and Zeke Miller contributed to this report.


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