Confidentiality is part of the job for Supreme Court judges

WASHINGTON (AP) — He was hospitalized in deteriorating health when Supreme Court Justice Hugo Black ordered his son Hugo Jr.: Burn the papers. Concerned that publishing some of his private notes might harm the court or his colleagues, he insisted that they be destroyed.

His wife called it “Operation Disappointing the Historians.” 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 just before his death in 1971, is not alone among Supreme Court justices who can sometimes seem like an excessive desire for secrecy.

Supreme Court justices have long valued privacy. That’s one of the reasons why it was so shocking that a draft opinion of a major abortion case was leaked last week. But it’s not just the judges’ work on opinions that they understandably like to keep secret. Judges are also ultimately the gatekeepers to decide when and when to publicly release information about their travels, speeches, and health issues, as well as their private paperwork.

Even details about the Supreme Court Building itself can be difficult to find. Prior to the coronavirus outbreak, the taxpayer-funded structure was used 30 to 50 times a year for special after-hours events by groups that paid for the privilege, but the court refused to provide a comprehensive list of groups or events. A few years ago, when the iconic red curtains surrounding the courtroom were replaced, the court refused to even name the company that did the work. The court is also not subject to the federal Freedom of Information Act.

The judges themselves backed out against suggestions that they were not transparent. Answering a question in 2018 whether the court would allow cameras to televise their hearings as Congress did, Chief Justice John Roberts had a simple answer: No. He continued to defend the court’s practices.

“It’s like we don’t do this in secret. “We’re the most transparent arm of government in terms of seeing what we’re doing and explaining what we’re doing,” said Roberts. When the court decides something, judges often give their reasoning in lengthy comments. A court spokesperson once described the court’s opening as a “goldfish bowl”. ” compared favorably.

But Gabe Roth, managing director of court transparency group Fix the Court, said it was wrong to call the court the most transparent branch. “This is a ridiculous statement and Chief Justice Roberts knows it,” Roth said in an email, describing some of the court’s practices as “strong.”

Even the judges’ decisions are not always fully disclosed. When cases come to court urgently and a speedy resolution is needed, a response often comes from judges without justification. Judge Samuel Alito defended what was called the court’s “shadow spot” last year, saying it was hard to see how the court could have handled things otherwise.

The coronavirus pandemic has forced the court to be somewhat more open. Before the pandemic, a public who wanted to listen to a debate live had to wait outside court for hours, and sometimes days, to get one of the seats reserved for the public, or pay someone else to wait. But when the court started to argue over the phone due to the pandemic, it started presenting the audio live.

If the court’s proceedings are more public, the judges themselves still like their privacy. Modern presidents traditionally release annual physical exam results, while judges make their own decisions about the disclosure of health information.

Some are more promising than others. Judge Ruth Bader Ginsburg has published quite a bit of health information through several cancer-related seizures. Still, she waited four months in 2020 to note that her cancer had returned. That year, Roberts spent a night in the hospital after falling and needing stitches. His injury wasn’t disclosed until next month, and only because the Washington Post found out about it.

Until last week’s leak, one of the biggest court mysteries of the year concerned the hospitalization of Justice Clarence Thomas. In late March, days after his admission, the court announced that Thomas had been hospitalized after experiencing “flu-like symptoms” and was diagnosed with an infection. The court denied COVID-19, but did not reveal any further details about Thomas’ illness or why he was hospitalized for about a week, days longer than expected. If the judges hadn’t been about to hear the arguments after Thomas was hospitalized, it was unclear if anything would have been released had he made his absence clear.

When the judges agree to speak to the groups, it is usually left to the group to announce the event. For example, last week, typically, the court did not disclose the fact that Roberts and Thomas spoke in Atlanta. Sometimes events are broadcast or recorded live, sometimes not. Sometimes the public is invited, sometimes the reporters are not.

The practice of judges is similar to that of Congress, where the programs of senators and representatives are not available to the public, or many of them are not obtained through routine registration requests. The President, by contrast, publishes a daily general calendar and a special calendar is recorded for the date. Visiting a justice in court is also not open to the public, unless the visitor makes it public.

When it comes to the documents of the judges, the records created while deciding which cases to file, drafting the opinion and communicating with their colleagues are considered the property of the judges so that they can act as they wish. Documents of Judge Thurgood Marshall were made public in connection with his death. But retired Judge David Souter donated his documents to the New Hampshire Historical Society, promising that they would not be made public until 50 years after his death.

Perhaps channeling Justice Black, Souter was reported to have told the association’s executive director: “There’s an incinerator outside my house, and you either accept it 50 years after my death or they go into the incinerator.”


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

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