Supreme Court Is Going to New Lengths to Hide Its Inner Workings From Scrutiny

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Human Rights and Global Wrongs

Two weeks after the November 2024 election of Donald Trump, the Supreme Court instituted a new policy to hide its actions from public scrutiny, according to a recent report in The New York Times. Chief Justice John Roberts told the court’s employees to sign a nondisclosure agreement pledging to keep the court’s internal workings secret.

Although employees of the court have long been compelled to remain silent about what happens behind the scenes, the new nondisclosure agreement requirement is stiffer than prior agreements employees had signed. The new agreement now reportedly threatens legal action against any employee who reveals confidential information.

By contrast, a watered-down ethics rule adopted two years ago says that Supreme Court and other federal judges are not required to publicly disclose their meals or overnight visits at residences owned by private persons or corporations.

“Instead of promoting trust and opting for greater transparency in the ethics of individual justices, the Supreme Court has chosen more secrecy,” Ellen Yaroshefsky, Professor of Legal Ethics at Hofstra Law School, told Truthout, responding to the new nondisclosure agreement policy. “Quite disturbing. In effect: ‘We don’t care; we don’t have to.’”

“Instead of promoting trust and opting for greater transparency in the ethics of individual justices, the Supreme Court has chosen more secrecy.”

This new nondisclosure agreement requirement follows leaks of internal court documents, including Politico’s May 2022 publication of Samuel Alito’s explosive draft opinion overruling Roe v. Wade, and revelations about ethical lapses of the court’s members, notably Clarence Thomas.

In September 2024, the Times published an exposé of how Roberts urged the members of the court to grant Trump extensive immunity from prosecution. The article quoted confidential memos. Roberts instituted nondisclosure agreements soon thereafter.

The new nondisclosure agreements come at a time when public trust in the Supreme Court is at a near record low. Since September 2020, the public approval rating of the court has remained at about 40 percent. A June 2024 Associated Press poll found that 70 percent of Americans think the members of the court are more influenced by ideology than impartiality.

Moreover, during the first year of Trump’s second term, the court issued an unprecedented number of rulings on its “shadow docket,” most of them in Trump’s favor. This means just what it says — these decisions take place in the shadows, away from public scrutiny, without full briefing and oral argument, and with little or no explanation. They include Trump’s dismantling of the Department of Education, his ban on transgender people from military service, and his firing of tens of thousands of workers.

During the first year of Trump’s second term, the court issued an unprecedented number of rulings on its “shadow docket,” most of them in Trump’s favor.

Cameras are still prohibited in the Supreme Court’s courtroom. Only 80 members of the public can watch as the highest court in the land considers issues affecting every aspect of our lives. From Bush v. Gore — which handed the presidential election to George W. Bush, who went on to usurp unprecedented power — to Dobbs v. Jackson Women’s Health Organization, which overruled the constitutional right to an abortion, a limited number of spectators were allowed in the courtroom during oral arguments.

In 1996, then Supreme Court associate justice David Souter told a House appropriations subcommittee, “The day you see a camera come into our courtroom it’s going to roll over my dead body.” Allowing cameras in the Supreme Court “would lessen to a certain extent some of the mystique and moral authority” of the court, Chief Justice William Rehnquist told a 1992 judges conference. Antonin Scalia thought that legal issues were too complicated for the public to understand, telling an audience in 1990 that “the law is a specialized field, comprehensible only to the expert.”

Cameras are still prohibited in the Supreme Court’s courtroom. Only 80 members of the public can watch as the highest court in the land considers issues affecting every aspect of our lives.

But as David Dow and I argued in our book, Cameras in the Courtroom: Television and the Pursuit of Justice, Supreme Court arguments should be televised. “Every [federal] judge and every justice is appointed to the bench for life, immunized from public pressures. They don’t need television exposure to keep their jobs. They can enjoy power with near-anonymity,” we wrote. Federal judges likely ask themselves, “Why take chances with an impartial electronic witness that can beam your every slip-up, every excess, to thousands or millions of taxpaying spectators, all in the name of giving them greater access to their own court system?”

So what are the Supremes hiding behind their new-and-improved nondisclosure agreements? “If the public were aware of how much of the deliberations affecting millions of people are made by 27-year-olds [clerks] after happy hour, they’d be shocked,” Nikolas Bowie, a Harvard law professor who clerked for Justice Sonia Sotomayor, told the Times.