The Supreme Court is a notoriously secretive institution, and that opacity can frustrate those looking in from the outside.
A recent New York Times article takes aim at one piece of that secrecy: the justices' personal papers. These papers hold priceless historical insight into some of the most consequential legal decisions in American history, yet they remain the personal property of each justice, free to be preserved, donated or destroyed as they see fit.
Those pushing for a uniform requirement, or other transparency measures, are wrong. The court works best precisely because its debates happen behind closed doors. More transparency wouldn't inform the public so much as further polarize the court.
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The Supreme Court works because of its secrecy
Justice Antonin Scalia died in 2016 without leaving instructions for how, or whether, he wanted his papers released. His family eventually donated them to Harvard's law library, to be made public decades from now, but the Times reports that the absence of a defined plan is what pushed the justices to consider a uniform code for handling their papers.
"In contrast with the executive branch, which is required to preserve and ultimately make public a record of its inner workings, there are no laws to determine what the justices save, shred, burn or reveal, or when," wrote Jodi Kantor, the Times reporter behind the piece.
Kantor's framing suggests she sees that autonomy as a problem: executive branch records, by law, must be preserved and released five or twelve years after a president leaves office, depending on classification.
But the Supreme Court is a different institution from the presidency. The justices are a private deliberative body, and their secrecy is part of what allows them to function despite serious disagreements. Their papers include communications with other justices about pending cases, materials from their law clerks and drafts of opinions – records that can reveal when a justice changed his or her mind, harbored private reservations about signing on to an opinion, or made concessions to build a majority coalition.
Debates conducted out in the open are rarely conducive to compromise. Two people who disagree are far more willing to explore concessions when no one else is watching. Think about your own arguments with someone you disagree with. Are you more likely to genuinely consider their perspective in private or in a room full of people? Do social media fights ever look like a good faith attempt to understand the other side?
The sooner a justice's papers are set to be disclosed, the more conscious he or she is likely to be that those writings will eventually go public. Worse, taking that decision out of justices' hands could push more of them toward the approach Justice Byron White took: destroying his papers so they're never seen at all.
Lawmakers could try to prohibit that too, but that carries its own cost. A justice who knows his or her records will be disclosed may simply stop writing things down. A note offering a colleague a concession never gets passed. The thought goes unrecorded instead of unsent.
The Supreme Court is secretive by design, and the justices broadly value that. Public pushes to bring cameras into oral arguments have mostly been met with resistance. It's the branch that functions most competently, and that Americans trust the most, precisely because it's the branch that has been least sensationalized. Court watchers had to rely on transcripts alone until the pandemic finally forced routine audio of oral arguments.
Deliberating behind closed doors lets the justices float compromises and concessions, or simply weigh the other side's position, free of the public judgment that plagues legislative debate. Life tenure protects justices' jobs but not their legacies. It does nothing to shield how a leaked or disclosed draft might read decades later.
The Supreme Court's lack of transparency has a moderating effect on rulings
It's understandable that people want more transparency from the Supreme Court. The value of a mysterious institution deciding issues that affect all our lives isn't intuitive, especially when you disagree with how a decision comes down.
But that impulse is mistaken. An increase in transparency would produce the opposite of its intended effect.
Justices are more likely to make good faith attempts to cross the aisle when they know their words won't surface publicly, at least not during their lifetimes. Life tenure makes justices individually resilient to public pressure, but knowing a private conversation is likely to become public sooner rather than later can still change how they deliberate.
The clearest example of public scrutiny disrupting the court's process is the leak of Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which overturned the Roe v. Wade abortion decision. Chief Justice John Roberts was reportedly working to build a middle ground, preserving Roe while narrowing it. But the May 2022 leak more or less locked the majority in place. Once the draft was public, any justice who shifted position would have to explain why they'd changed their mind.
Chief Justice Roberts likely wasn't close to winning over the other conservatives, but public scrutiny forced the court's hand anyway. A leaked opinion is the extreme end of increased transparency, but the same principle applies at every level: The more a private conversation risks becoming public, the less freedom the justices have to explore, concede and compromise. That freedom, not secrecy for its own sake, is what public disclosure puts at risk.
Dace Potas, a law student, is an opinion columnist for USA TODAY. Follow him on X: @DacePotas.
This article originally appeared on USA TODAY: Don't force the Supreme Court to reveal its secrets | Opinion
