The Supreme Court should not be shrouded in secrecy | Opinion

The firestorm sparked by the recent leak of a Supreme Court draft opinion – claiming to eliminate constitutional abortion rights established 49 years ago in Roe vs. Wade – sparked fury for different reasons from various sides.

But the consternation should serve another useful purpose: to expose the secrecy of how this court conducts its business. Although described as “the least dangerous branch” of government by Alexander Hamilton, it is best characterized as “the most secretive of them”. Its lack of transparency translates into an absence of accountability.

While differing on the meaning and scope of the leaked draft, all segments of the ideological spectrum seem to agree that the secrecy of the High Court’s decision-making process – including its deliberations – is sacrosanct.

But should it be?

The secrecy of legal proceedings is not of ancient descent; many deliberations of judicial bodies and policy makers have, over the years, been subject to some form of contemporary public scrutiny.

But over time, secrecy became attached to the jury’s deliberations. This is an understandable way to encourage lay participation, to facilitate the exchange of views in the jury room without being discouraged by outside reactions and influences, and to prevent jurors from are unwittingly subjected to intrusive investigations.

But for the judicial officers, the reasons for the secrecy are not so clear nor defensible. As public officials, they should conduct their activities as far as possible within the framework of the public they serve and who pays them, rather than in secrecy.

The most secret of all

The High Court was at the height of this model of secrecy.

It is a supreme irony that the lamentations about how the leak violated the confidentiality of the judicial process are tied to an apparent dismantling of women’s right to privacy and, perhaps, a harbinger for all others too.

For decades, judges in the nation’s capital have paid homage to opacity while resisting any coverage of his work by audio or visual means. It took the pandemic to open it up a bit to remote phone review.

But he continued to ban all television coverage of his proceedings, based on his antiquated and outdated fears of demagoguery by lawyers, technical glitches in coverage and other excuses that have all been belied by decades of TV court coverage of much more sensitive topics. , volatile, and potentially damaging to trial courts, including cases against Minneapolis police here and other high-profile criminal cases elsewhere.

The public could greatly benefit from observing the proceedings of the high court. This could not only be educational for the public, but could also bolster the court’s weakened credibility and image, which is being undermined these days.

Radical response

So, instead of wringing hands about the leak, here’s a radical answer that’s about a radicalized court: the deliberations of jurists should be subject to public scrutiny.

It would be interesting and informative if the public had access to audio and perhaps even video coverage of the proceedings.

The secrecy that judges enjoy creates an aura that their decisions have some sort of divine origin. Chief Justice John Robert – who has expressed concern over what he calls the “appalling” leak – called the role of legal officers in a much more pedestrian mandate during his Senate confirmation hearing “referees”, robotically and impartially calling “balls and strikes”.

It’s clear now, if it wasn’t before, that this baseball metaphor is a naïve and dangerously misleading characterization. However, the general public may still be in the dark, given the veil of secrecy that surrounds court decision-making, allowing judges to mask the ideological and political nature of their decisions.

The truth is that ideology and politics are at the heart of many of his decisions on controversial and important issues, and the abortion case seems to dispel the myth that decisions are guided by some sort of scholarship. purely legal, rather than by ideological decisions and political agendas.

The court’s tendency towards secrecy appears to be increasing, as evidenced by the increasing use of its “shadow case” to make hasty decisions in cases without briefing or pleading by lawyers or prior review of the dispute by the media.

The apoplectic reaction to the flight seems grossly exaggerated. What would be so wrong if Supreme Court lawyers circulated their draft opinions before they were finalized?

A number of judges – some in federal courts, others in state courts and family law courts – circulate their “draft” opinions to attorneys before they are finalized, which allows comments or corrections on factual matters or complex legal issues. Although not practiced on a large scale, the practice has been beneficial in limited circumstances without raising the ears of lawyers or litigants.

Administrative agencies, which impose rules with the force of law, usually circulate their draft regulations and allow comments before they are finalized.

Removing the shield of secrecy that hides the deliberations and decision-making of the Supreme Court would provide a form of reality therapy, removing ideological illusions and, perhaps, enhancing the stature of the court, which could really use this coup de thumb.

Judges will surely recoil at the idea of ​​the public watching how their decisions are made, recalling the remark of Germany’s first Chancellor Bismarck that “laws are like sausages; it is better not to see them being made.

But perhaps it’s time to allow the public to see how court decisions are “made” in light of the leaked abortion cases. At a minimum, it should encourage the televising of Supreme Court proceedings and, after that, open their proceedings to public scrutiny.

The opening of judicial deliberations to the public is certainly unconventional, perhaps unprecedented. But so is the extinguishment of a nearly 50-year-old fundamental constitutional right that generations of women have relied on. While the notion of accessible court proceedings seems well outside the mainstream, it is no more extreme than the way the current court operates secretly.

The author is a Twin Cities constitutional lawyer and member of the Supreme Court Bar.

About Jessica J. Bass

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