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.