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, 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. -- AS Miller and DS Sastry, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, Buffalo Law Review, 22(3):799, 1973 (my blog post on this paper)
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
To hell with that mode of operations --
it's busted
The Daily Beast reports about a rare leak regarding internal USSC (US supreme court) operations to CNN:
The Supreme Court has been hit by a new damaging leak over its abortion decisions in a fresh blow to its embattled reputation—and a hint of even more leaks to come.
Intimate details of months of disagreement among the nine justices were reported at length by CNN Monday, just hours after President Joe Biden and Vice President Kamala Harris both backed major reforms to the court, with the president accusing justices of being “above the law.” CNN also said its report was the first of a series, suggesting more leaks ahead.
The justices are likely to be extremely concerned at the level of detail CNN has obtained about their internal divisions over the case Moyle v. United States. It was prompted by Idaho introducing an extreme abortion ban in the wake of the Dobbs decision overturning Roe v. Wade, which would have criminalized doctors performing abortions under any circumstances. That move prompted the federal government to introduce formal guidance that hospitals receiving federal Medicare funding had to offer emergency abortions—which Idaho’s Republican attorney general tried to challenge.
Initially Idaho had the case taken up as an emergency by the Supreme Court and got an emergency stay of the federal Medicare move in January on the court’s so-called “shadow docket.”
CNN revealed Monday that the stay was issued 6-3, splitting along ideological lines, a split which had never been known before and should be a secret.
But that split was then followed by sixth months of fracturing among the conservative justices, the outlet revealed. Among the leaked facts were that after a public hearing on the case in April, the justices’ private vote revealed no clear majority for resolution. Private votes of the justices are considered one of the court’s most closely guarded secrets.
Conservatives John Roberts, the chief justice, and Brett Kavanaugh both “expressed an openness to ending the case without resolving it,” CNN reported.
The leak also reveals that Roberts then abandoned normal protocol and did not assign the writing of the majority decision to any of the justices, leading to months of negotiations.
Instead he, Kavanaugh and conservative Amy Coney Barrett worked on an opinion which would call the case “improvidently granted,” a rare move to essentially admit that the court should never have taken it up.
But CNN reveals that the other conservatives—Samuel Alito, the author of the Dobbs decision, Clarence Thomas and Neil Gorsuch—argued from April until June that Idaho should have its abortion ban upheld. Alito was described as “adamant” that the Biden administration was in the wrong, CNN said.
The report reveals that Roberts, Barrett and Kavanaugh were then offered a compromise in “negotiations” with liberals Elena Kagan and Sonia Sotomayor, which was eventually what prevailed: a ruling not that the court had made a mistake in taking the case, but that Idaho had not shown “irreparable harm” by the Supreme Court setting aside its emergency stay of the federal guidelines. The liberals accepted, leading to the June ruling.
Such a lengthy and extensive leak of internal disagreements and the specifics of procedures and draft opinions are likely to cause extreme concern inside the court and particularly for Roberts. A lengthy probe into the 2022 Roe v. Wade leak— called “appalling” by Roberts—saw U.S. Marshals demand access to clerks’ private texts and emails but did not find a culprit.
Given the moral collapse and authoritarian radicalization of the Republicans on the USSC, there is no reason to trust its opinions or its fidelity to democracy or the rule of law. I sincerely hope that CNN leaks and leaks and leaks. The leak of the Dobbs case that overturned Roe was not appalling as the radical authoritarian justice Roberts claims. It is the six Republicans on the bench and the secrecy they demand to operate in that is appalling. And in view of the current circumstances of radical authoritarian extremism, secrecy as usual is ghastly and unjustifiable.
Of course, if transparency is injected into internal USSC operations and decision-making, what might the bad consequences be assuming there would be some? I assume that the six Republicans could simply stop talking to the three Democrats and just do whatever they want without any input from them other than their dissenting or concurring votes and opinions. That would make the USSC just like the House is now (and the Senate probably will be if the Repubs regain Senate control and DJT wins re-election). Raw power is the only thing that counts.
If it boils down to just raw power in all three branches of government, one can argue that our democracy and the compromise that it demands will be severely damaged. Maybe that is inevitable.
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