Secrecy and the Supreme Court

Everything degenerates, even the administration of justice, nothing is safe that does not show it can bear discussion and publicity. .... Power tends to corrupt, and absolute power corrupts absolutely. -- Lord Acton, 1834-1902

Power cloaked in unwarranted opacity, tends to accelerate, harden and deepen corruption. The Supreme Court has an awful lot of power and it is awfully opaque. That opacity can hide an awful lot of corruption, including partisan politics. Hidden corruption in government deceives and betrays the public. -- Germaine, 2021

Context

A couple of recent Supreme Court (SC) decisions led me to want all nine justices impeached and removed. The first was the SC dismissal of lawsuits against the ex-president for violating the emoluments clause. The court "reasoned" that the case was moot because he was out of office. The reason he was out of office was that the SC refused to rule in the case while he was in office. As I saw it, the court intentionally dragged its feet to protect a deeply corrupt president for partisan political purposes. To protect the ex-president, the court went against its own precedent of allowing cases against politicians out of office for their crimes. None of the three democrats on the court dissented, so I concluded they too voted to defend the indefensible. I wanted all nine impeached and removed from office for that grotesque failure of duty to defend the rule of law.

More recently, the SC unanimously voted to allow prosecutors access to the ex-president's tax and financial documents. Once again, the court intentionally delayed issuing this for months to protect the beast while it was still in office. And again, there was not one word of explanation, including nothing from any of the three democrats. The SC just tossed its nasty thing into the punch bowl and was above explaining the delay to us unwashed masses of fools and mushrooms. Given the secrecy and lack of explanation for the protective delay, that too looked like indefensible politics and another attack on the rule of law. I wanted all nine impeached and removed for that dereliction of duty.

A long standing personal complaint is excessive opacity in the functioning of federal courts, especially the powerful SC.

Secrecy & the Supreme Court

A 1973 paper, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, discussed the rationale for secrecy of SC operations and decisions. The paper noted that Judge Felix Frankfurter (1882-1965) argued that, although there is a legitimate need for the public to know how the court operates, the SC could not open itself up to public scrutiny without ceasing to function effectively. Huh??

In reaction to that, common sense flares up and reflexively retorts to Frankfurter: That is sheer nonsense. SC justices are appointed for life precisely to insulate them from public opinion and partisan politics. What the hell are you blithering about?  

Despite that common sense reflex, the paper's authors point out that the Frankfurter rationale, if that's what it is, "has met with virtually unanimous approval." So much for common sense.

The paper's authors write:

Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. .... We maintain that the secrecy which pervades Congress, the executive branch and courts is itself the enemy. .... For all we know, the justices engage in some sort of latter-day intellectual haruspication[1], followed by the assignment of someone to write an opinion to explain, justify or rationalize the decision so reached. .... That the opinion(s) cannot be fully persuasive, or at times even partially so, is a matter of common knowledge among those who make their living following Court proclamations.

The authors go on to level a slew of ferocious criticisms of SC secrecy and sloppy thinking and writing. They point to political expediency as the core but hidden source of court decisions. They cite one commentator as describing the practice of opinion formation as "scholarly astrology." They argue that "the very fact that students of the Court exhibit a desire to gain a better understanding of the Court is ample proof that the opinions are inadequate to explain the decision making."

Some factors that can make the process opaque and the product shoddy include a need for compromise to get at least five votes. That can lead to murky thinking and writing. A major source of opacity and confusion arises when judges work backward from conclusions to reach principles instead of using principles to draw conclusions. In other words, judges often decide based on their opinions, biases and values, not on relevant legal principles. They smash the round pegs in their own minds into the square holes of legal principles, often at the partial or complete expense of facts, true truths and sound reasoning. The rationale that secrecy is needed for the decision-making process is not explained, just asserted: "Justice W. J. Brennan states that the conferences are carried out in "absolute secrecy" for "obvious reasons" and avoids any further elucidation of the matter. .... It is the validity of that notion that is challenged in this article."

What are the obvious reasons? Just blurt them out so that we can decide what to believe for ourselves.

Maybe the sources of muddled language and incoherent thinking cannot be avoided. Humans are human, not Vulcans, the Borg, Klingons or goldfish. The situation would be much more understandable and forgivable if some of the secrecy was lifted and the public allowed to see more of how and why decisions are made. That would go a long way toward easing the kinds of suspicions some people have, like me, that SC justices are more corrupt politician-ideologues in black robes than honest, unbiased interpreters of the law.

Footnote: 

1. Haruspication: the act or practice of divination from the entrails (guts) of animals slain in sacrifice, mainly sheep and poultry livers; haruspicy had its heyday as a religion in ancient Rome