Wednesday, August 12, 2020

A Few More Thoughts on Supreme Court Secrecy

by Daniel Epps

I'm pleased to be blogging at a venue I've been reading with pleasure for years. In my in inaugural post, I thought I'd offer a few more thoughts on the topic that has been on my mind this last week: secrecy at the Supreme Court. Mike has a thoughtful post on the topic, partly responding to my piece. I agree with much of what he says, and in any event I won't use my first post here to offer a rebuttal to the blog's founder and namesake! Instead, I'll just note that in my first-best world, we woudn't necessarily have more leaks. But we would have guaranteed disclosure, within a fixed and relatively short time period, of information that the current system treats as confidential. I'd like to see such a system adopted as a matter of formal rule or statute. 

In terms of exactly how long that short time that period should be: I could live with ten years, though I suspect the necessary time limit to prevent disclosure from causing serious harm to the deliberative process might be a good deal shorter. Indeed, I think there may even be a significant difference betweeen (1) disclosure before the decision, or within a few days of its announcement; and (2) disclosure a few weeks or months after the decision, by which point the Court and the decision will be much less salient in the public eye. But in any event, some required disclosure after some set period would be an improvement. 

The specific reforms I'd like to see would have a couple of components: (1) an expiration date for confidentiality obligations binding law clerks and other insiders and (2) mandatory retention and disclosure of internal Court papers (memos to the conference, draft opinions circulated to other Justices, and the like). Right now, what we have is a system in which informal norms and practices govern this kind of disclosure. 

Consider the Justices' papers first. At present, Justices have complete discretion with what to do with their papers: which to retain, which to make public, and when to do so. The papers are essentially treated as the Justices' personal property, to do with what they will. This makes little sense. The Justices' papers are prepared using government-owned printers, transmitted through government-owned computers, and so on. These are valuable and important historical records, and at some point the interest of historians and the public in knowing how a powerful governmental institution made its decisions outweighs any interest the Court has in secrecy. When that balance clearly tips in favor of disclosure is up for debate, but it surely does so once a Justice dies, and arguably once a Justice retires. To be sure, some justices do release their records in a relatively quick fashion—Justice Stevens chose to do so, as I understand things—but the point is that the choice shouldn't be up to them. Moreover, Justices should be under some obligation to retain records; as it is, they can go through their papers and expurgate anything that might embarrass them. I don't see a good rationale for permitting that.

Now consider disclosures by law clerks. Formally, confidentiality obligations are never-ending. Informally, though, many clerks seem to become more willing to share confidences about their year at the Court after some period of time (often several decades)—often after the Justice for whom they clerked has died. I think this informal practice is likely for the best, again because I think that certainly decades later there's a much stronger case for publicity and a much weaker case for maintaining secrecy. But it would be better to have this formally governed by rules. Under the current regime, only some former clerks are willing to speak up, even later in life—meaning that those who are willing to break confidentiality obligations have an outsize ability to shape narratives. 

I also wanted to explore one argument I've seen come up a lot when thinking about law clerks. It came up in a Twitter exchange with Prof. Carolyn Shapiro and mixological celebrity Fr. Bill Dailey. Father Bill raised concerns about "clerks who have almost certainly agreed with their judges to keep some matters private then leaking." Prof. Shapiro noted that she agreed "as a general matter about clerks maintaining the confidences they have promised to keep."

Here, I want to cautiously advance the argument that the mere fact that a clerk (or other insider) has been required to promise confidentiality as a condition of her job should not necessarily be dispositive as to that clerk's right to reveal what went on at the Court at some later point, perhaps decades hence (a view that it seems many, though certainly not all, law clerks follow in practice). My view isn't that those promises should necessarily be disregarded, or that they shouldn't be taken seriously. But it is my view that they need to be analyzed carefully. 

Here's why. A clerkship, like any other government job, is a public office. As such, it is only permissible to attach conditions to such employment where they serve public-regarding purposes. It would be an abuse of power for a government official to condition government employment on the employee providing some purely private benefit to the government official. Consider one example: Government official says to prospective employee, "I will hire you if you if you promise to give me 10% of your salary as a kickback." Would we consider that promise binding in any meaningful sense? I think not, because the government official would be plainly abusing his power in order to extract a private benefit. 

If you agree with me on this example, then you agree that the mere fact that a promise is made in exchange for government employment doesn't end our analysis. Let's consider another example. Imagine a government official conditioning employment on the employee's promise to convert to a particular religion. Again (and I recognize the example is a bit absurd, but it helps move my argument along) we'd treat such a promise as wholly void. There are a whole host of problems here (the most significant of which is a violation of the No Religious Test clause), but for my purposes the one I'm concerned with is that the government official would be improperly asking the employee to give up a constitutional right—free exercise of religion—in order to obtain government employment. 

Now imagine a slightly different hypothetical. What if a justice (or other public official) conditioned employment on the employee promising never to criticize the justice or the justice's work for the rest of the employee's life? Here, the right the employee is being asked to give up is her right to freedom of speech. Would we think that such a promise should be enforceable? I think not, at least in some cases we can imagine—such as where the employee felt the need to speak out about some abuse of power by the justice. Again, the mere fact of the promise alone doesn't seem to answer the question. 

And now we come to confidentiality obligations. Like the previous hypo, they purport to limit the employee's freedom of speech for the duration of her life. My view is that here, too, we can't just treat the promise itself as binding without further inquiry. We need to ask more questions—particularly, does such a promise actually serve the public interest? Or does it serve to advance a justice's private interests—particularly, the justice's reputational interests—without providing a public benefit? We can debate what the answer to that question is, or after what period of time the public interest might tip in favor of disclosure. But I do think we need to ask the question, rather than just pointing to the existence of a confidentiality obligation that was made a condition of employment. 


Michael C. Dorf said...

I agree with nearly all of this. The one part that gives me pause is the suggestion that the use of government computers by the Justices and their staff necessarily renders whatever is thereby produced official or public. My concern would be the same for an employee of a private firm. Technology has rendered the boundary between private time and work time highly permeable for a great many workers. Supreme Court justices, like other people, could have personal/private material on their work computers. Thus, allowing some purging of personal material (pursuant to guidelines) makes sense to me.

Unknown said...

As usual, Dan is thoughtful, smart, and pushing beyond the obvious borders. I agree with much, but not that all drafts and internal notes should be public property. Like most "work-product," this should be protected due to the incentives it would otherwise create for destruction (ala Justice White, I believe).
And here is one former clerk's disclosure of a few "confidences," 35 years later:
88 Geo. Wash. L. Rev. Arguendo 83.
(Tried to input my name, Rory Little, UC Hastings Law.

Joe said...

As to the work product thing, how does that work for legal work in other branches?

I agree that there is no need for an absolute rule though I wonder if the author really was going for that in a blog summary of his position. Private material can be omitted without the principles being violated. For instance, a bill that includes a requirement for an expanded explanation of recusals includes an exception: "When personal privacy would be implicated, an explanation would not be required."

There would be some dispute along the edges but generally an open access policy would be appropriate. Without debating the specifics, notes and drafts would often be of particular interest later on. Disclosure rules does lead to changing behavior but again how does that work in other cases? Are drafts and notes not included in executive branch records requirements?

Anyway, I welcome the discussion. Later on, there can be more disagreement. Dorf v. Segall was fun.

Asher Steinberg said...

Excited to see you blogging here.

I found Josh's piece bizarre and I don't see how anyone can seriously argue that these recent leaks are terribly harmful. But they do strike me as weird in ways that maybe should trouble us. In my and probably your lifetime as conscious observers of the Court, there had been, up to now, two major episodes of leaking, one some time after Bush v. Gore and one very shortly after NFIB. These leaks more or less transparently came from deeply disappointed dissenters or clerks for them and were intended to fault how the majority reached its decision. I'm not sure that what they revealed actually did that, but their accounts of how the Court decided major cases in somewhat unconventional ways had news value and the leakers' motives were at least defensible. Subsequently there was a smaller leaking episode regarding the census case that seems similarly motivated.

Now, what are these leaks about? They don't seem intended to reveal some faulty decisionmaking process, because they don't reveal anything that could be colorably described as one. All the events described are so unremarkable that it's difficult to see what could have moved members of an extremely confidential institution to share them with a journalist. Here I think Josh's earlier blogging on the leaks before his ridiculous op-ed gets something right; the motives for these leaks are most likely reputational, with various Justices or their clerks making themselves out as decisive and stalwart, others making themselves out as moderate dealmakers. That could be wrong; maybe certain Justices have just become terribly gossipy, maybe in the heat of the end of the term these arcana seem far more damning of their intended targets than they are. But let's suppose that this is selective reputation-burnishing leaking. I'm not sure that as between no transparency and that kind of transparency, we shouldn't prefer no transparency, as it's likely to produce a distorted if not false picture of the Court. And at the least, I think it has to be right that wanting to burnish your reputation isn't a sufficient reason to violate a confidentiality norm to which Justices otherwise adhere.

Joe said...

It is supposition, of course, to determine why Joan Biskupic had the means now to have a four part series as she did.

Perhaps, the pandemic with justices working from home etc. made things a bit different. Many state courts went with live arguments and other means of openness. State chief justices made statements about the situation. Cf. Roberts not even saying a brief intro to the telephonic arguments to note the situation was a bit different. Was there pressure (opposed by some?) to suggest all was largely biz as usual?

I do also think that the leaks was a matter of justices themselves wanting to comment. The accounts to me came off as positive (though some might spin it as not so given one's leanings) of Trump's nominees in particular. Roberts also came off as an independent sort that tried to protect SCOTUS. This talking point, almost, got some pushback from liberal leaning people alone as overblown. But, it also might have annoyed some conservatives too.

Note Biskupic wrote a biography of Roberts himself. That very well might have factored in. Biskupic noted Roberts was uncomfortable but accepting (including as a given he couldn't stop anyway) with her efforts and assisted her. Roberts might have been more accepting there too though how far he was involved (did he look the other way as others, including maybe even a clerk, talked about him?) is supposition.

I agree -- for someone basically in the know -- the articles didn't provide much material that was unknown. There was more color there. OTOH, again, for the ordinary person who is not too familiar about the Supreme Court, the article was helpful. Detail there helps to clarify and inform like it does for things in general.

Joe said...

Many state courts, that is, had video and audio. As do multiple countries. Yes, SCOTUS had live arguments telephonically during May.

Frank Willa said...

Agree, a formal, like a business world 'confidentiality agreement', could address the issue.
And, to Professor Dorf's observation; could the clerks be restricted in the use of government computers/devices to work of the court only; requiring all personal communications be done on personal devices as part of the terms?
As I write this I wonder what would happen if a party wanted to 'subpoena' into a device during the confidentiality period, say to look for 'bias'?
Interesting topic: thank you both.

* note to telephone court: it seems live court would be possible if conducted in a large room, e.g. a 'basketball court' is 84' x 50'; Justices 9 feet apart, counsel 30 feet away, microphones and speakers if needed - there are convention spaces even larger? Just asking.