The Supreme Court guards its privacy. Too bad it doesn't care about yours and mine

To use Justice Samuel Alito's criteria in his recently-leaked draft opinion overruling Roe v. Wade, where is it written in the Constitution that practically everything that happens at the Supreme Court is secret?

This article first appeared in Salon.

The answer, my worthies, is that it is nowhere to be found in the Constitution. Secrecy — or, if you will, privacy — at the court is another one of those invented rights Alito and his pals are so fond of yapping about. The secrecy of that august body is almost absolute: Everything that happens at the Supreme Court, with the exception of its hearings and the publication of its decisions, is secret. The court maintains complete secrecy about how and why it chooses which cases to hear. The conferences held by justices during which they decide cases and record their votes is so secret they don't even allow their clerks inside the doors when they consider the arguments on either side of a case. Most justices demand that their clerks take an oath to keep secret everything they learn while carrying out their jobs.

There are no federal laws which mandate or govern the secrecy enjoyed by the Supreme Court. In fact, whoever leaked the Alito draft opinion cannot even be prosecuted, because he or she broke no law. There is nothing in federal statute or in the Constitution itself, for that matter, which mandates that draft opinions — or any other document produced at the court by the justices or their clerks or anyone else — be kept away from the prying eyes of the press or the public which, by the way, pays the salary of everyone working in that pile of Vermont and Georgia marble located just behind the Capitol.

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If you listen to the justices themselves or so-called court-watchers or even members of the bar who practice before the Supreme Court, the reason for all the secrecy is tradition. It's always been that way, and so it should remain. In other words, everything at the Supreme Court is secret because they say so.

The assumption has always been that the court can make its own rules because, well, it's the Supreme Court. It's like saying the court is so supreme, it's the highest law in the land.

Except it isn't. The highest law in the land is the Constitution, and all that document does is establish the existence of the court and mandate that judges be paid a salary and serve lifetime appointments and that they can be removed if they don't maintain "good behavior" and lay out what kinds of cases over which the court has original and appellate jurisdiction. One clause in Article III has been interpreted to say that the Congress has power to regulate the court, such as to write the laws setting the number of justices and of course to pay for the court by using its power to raise taxes and pay for the various parts of the government, of which the court is one.

But the secrecy the court maintains for itself and the way it goes about its business? Nope. Nowhere to be found. What the court keeps to itself and what it makes public is not a matter of law; it's a raw assumption of power it does not statutorily have.

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The court does not allow the public to witness its deliberations, which take place within its super-secret conferences of justices, nor does it publish any notes or records of those deliberations. The nine justices could be behind those closed doors trading votes or talking about friends of theirs who have interest in the case before them or doing favors for each other or for powerful interests within the country or even within the political parties or other branches of government, and we would have no way of knowing it. They could be exposing their own prejudices or extolling religious doctrine and beliefs and we wouldn't know about that either.

What little we do know about how the court does its job comes from the papers of a few justices who upon their deaths have donated them to universities or, in the case of Justice Thurgood Marshall, to the Library of Congress. There is no Official Records Act that applies to Supreme Court justices, and because of that gaping hole in the law, they wholly own and control all the records they produce while on the court, and have full freedom to release them or refuse to release them or, as several justices have done, command that their papers are burned upon their deaths. The records of their service on the court are thus private. As citizens, we may pay for those papers with our tax dollars, but they don't belong to us, to the government or even to history. They are the private property of the justices, and by what convention is this so? Because they say so.

For all we know, the nine justices could be behind closed doors trading votes or doing favors for each other or following the orders of powerful interests. We don't know, and they don't have to tell us.

Most justices during recent times have donated their personal papers to colleges or universities with restrictions on when they can be released. The most common restriction is that a justice's donated papers may be made public after the retirement or deaths of all the justices who served with him or her, apparently because they don't want their buddies to suffer any embarrassment. The reason for this convention is because of what Justice Marshall did: upon retiring, he donated his personal papers, some 170,000 items in all, to the Library of Congress and allowed them to be released upon his death, which occurred only two years later.

The Washington Post and other news organizations quickly published several series of articles on the inside information about the court revealed in Marshall's papers. His colleagues were sufficiently perturbed by this invasion of their privacy that they prevailed upon the Senate Government Affairs Committee to hold hearings on what should be done to protect judicial papers.

Chief Justice William Rehnquist made it clear that the justices were not pleased by the quick release of Marshall's papers, but the Senate took no action to regulate the personal papers of the justices because, as the committee explained later, "the separation of powers and the traditions that surround the court, it is not clear what, if anything, Congress should do about regulating preservation and access."

We could write this off to typical congressional stasis and inaction if it weren't for the fact that the Congress had no such compunction when, after the Watergate scandal, it passed the Official Records Act, mandating that presidents preserve and keep all their records. It was correctly pointed out at the time that presidential records were the product of work paid for with taxpayer dollars. The same is true of the work papers of Supreme Court justices, of course, but at least until now, the impenetrable mysteries of the court have survived attempts to open up its records and deliberations to more public scrutiny.

The leak of the Alito opinion has changed things a bit, even though it was not technically the first leak of a Supreme Court decision. The original Roe decision, in fact, was leaked to a reporter for Time Magazine in 1972 and appeared in the magazine a few hours before it was publicly announced. That caused a brouhaha that, while now forgotten, created quite a political stir. The Time reporter was roundly attacked from all sides, including the Supreme Court bar and the press corps that regularly covered the court, for his outrageous violation of … well, what did he violate exactly?

Protocol. That's what he violated, and that's what the reporter or reporters for Politico who leaked the Alito draft violated, too. What is protocol? Well, the dictionary defines it as an official set of rules governing affairs of state or other governmental occasions. Protocols can be established by laws, but in the case of the Supreme Court, they aren't. The court's protocols exist because they say so.

The whole thing about the Alito leak is something of a tempest in a teapot containing leaves we're supposed to read about the court. The court has increasingly been seen as politicized in recent years, not least because one of our two political parties, the Republican Party, and the last president did not conceal their intentions to appoint arch-conservative justices who would carry out the will of the party and its adjunct, the Heritage Society, to overturn Roe v. Wade. The hypocritical political machinations gone through by Mitch McConnell to deny Barack Obama his appointment of Merrick Garland to the court — while performing an insta-confirmation on Amy Coney Barrett just a month after she was appointed and eight days before Joe Biden was elected president — have been beaten to death, so I won't go into any of that now. Suffice to say that any claim that the Supreme Court is apolitical (which was always doubtful) has now become ridiculous.

What remains is an uncomfortable truth about the Supreme Court: The justices, the clerks, and everyone who works there are public employees paid with taxpayer dollars. The Supreme Court building itself, constructed with tax funds during the public building surge of the Depression, "is a relatively new addition to its image," having been constructed in 1936, as Politico pointed out in a story following its publication of the leaked Alito opinion. Before that, the court conducted its business out of the Capitol building, where only the chief justice had an office. The other eight justices worked at their homes.

But even back then, the work the Supreme Court did was paid for by the public, and a good argument can be made that the public should have had more access to the court's business, including its hearings, which while technically held in public are almost impossible to attend. It took the COVID pandemic, which forced the court to hold hearings by phone, for the Supreme Court to open itself to live broadcasts. Before that, if a reporter or member of the public wanted to hear the Supreme Court consider one of its cases, they had to stand in line, sometimes for hours or even days, to get one of the prized seats in the court reserved for the public.

The court has consistently resisted calls to televise its hearings, citing bogus reasons, such as fear that lawyers will grandstand for the cameras or that demonstrators may interrupt the court seeking to publicize their opposition to one side or the other in the case being argued. This despite the fact that courts across the nation have opened themselves to televised coverage of trials and other proceedings without any major problems.

In answer to a question in 2018, Chief Justice John Roberts even had the gall to assert, "It's not as if we're doing this in secret. We're the most transparent branch in government in terms of seeing us do our work and us explaining what we're doing." Roberts appeared to be referring to the publication of Supreme Court decisions with their lengthy reasoning. But the court's recent use of the so-called shadow docket to dispose of some of its most controversial decisions — such as an appeal of the recent Texas "heartbeat" anti-abortion law — without publishing opinions or even the individual votes of the justices proves that is just bullshit.

The only law to which Supreme Court justices are subject that even marginally opens them up to scrutiny is the requirement that senior government employees file an annual financial disclosure form. But even that document, while revealing outside income and stocks and bonds held by justices, does not require them to list the amount of money they receive as gifts from corporations or overtly political organizations (such as the Heritage Society) in the form of free flights on corporate jets or stays at luxury resorts in the Caribbean or luxury hotels in Zurich and Rome while they give speeches or receive awards. And Supreme Court justices, like members of Congress and the president, are free to trade stocks and bonds based on information gleaned from the cases they decide. Justices don't have to tell anyone what they're doing because they say so.

Justice Antonin Scalia was notorious for accepting the largess of wealthy individuals, corporations and political organizations. Between 2004 and 2014, he took 258 subsidized trips to places like Hawaii, Ireland and Switzerland, according to the New York Times, without having to list the amounts of money involved in the payments made for his travel, accommodations, meals or anything else. In fact, Scalia died while on a hunting trip at a luxury preserve in Texas owned by John Poindexter, a wealthy industrialist from Houston whose firm had had cases before the Supreme Court while Scalia was a justice. Just before he died, according to the Times, Scalia had been on all-expenses-paid jaunts to Singapore and Hong Kong. Neither he or any other justices are required to list the amounts of free stuff they are given, nor are they required to recuse themselves from cases involving the people who have given them gifts of luxury travel and accommodations at resorts like the Texas hunting preserve owned by Poindexter.

Supreme Court justices officially earn just north of $200,000 a year, but they are able to live like millionaires on weekends and during their annual breaks for Christmas and summer holidays. They own all the product of the work they do, and they can use it to write books or give paid speeches and profit from the work we pay them to do. And they don't have to tell us a thing about it.

How can the court be expected to do its job when its privacy has been invaded? Such was the cry from the right-wing commentariat and sold-out congresscritters.

Last week, the curtain was pulled back just a bit on all the secrecy and privacy enjoyed by the justices of the Supreme Court when Politico got hold of the draft opinion overturning Roe written by Alito, a longtime abortion foe. Chaos ensued. How can the court be expected to do its job when its right to privacy is invaded in such an outrageous manner? That was the chorus heard from the conservative commentariat and sold-out congresscritters seeking to curry favor with their favorite justices.

What right to privacy? The same right to privacy guaranteed by the 14th Amendment they're about to throw in the trash when they throw out the right to abortion in Roe? It's hard to keep a straight face as I type these words: Like everything else in the Constitution, the right to privacy is a right afforded to the following people, first among them Supreme Court justices. Supreme Court justices enjoy the right to the privacy of their chambers, the privacy of the conferences during which they decide the fates of others on a weekly basis, and the privacy of their personal papers, which they can do with as they please, because they say so.

Everybody else, get in line over there with your hands out, and we'll see what privacy rights you're entitled to. For the time being, you can marry whomever you want, you can practice sodomy in the privacy of your bedroom, you can use contraception to prevent pregnancy, and you can marry or have a relationship with a person of a race different from your own. All of those privacy rights are yours because they say so.

For now.

Meanwhile, stop peeking under our robes. What we're wearing under there is private, don't you understand?