For Supreme Court justices, secrecy is part of the job

WASHINGTON – Supreme Court Justice Hugo Black was hospitalized in failing health after giving an order to his son Hugo Jr: burn the papers. Concerned that the publication of some of his private notes might harm the court or his colleagues, he insisted on their destruction.

“Operation Frustrate-the-Historians,” his wife called it. As for the reporters asking the hospital about his condition, “Don’t tell them,” Black said to his son.

Black, who served on the court from 1937 until shortly before his death in 1971, is not the only Supreme Court justice with a sometimes extreme desire for secrecy.

Supreme Court justices have long valued confidentiality. That’s one of the reasons the leak of a draft advisory opinion in a major abortion case last week was so shocking. But it’s not just the judges’ work on opinions that they understandably like to keep under wraps. The judges are also ultimately the gatekeepers for information about their travels, speaking engagements, and health issues, as well as the decision-makers about whether and when their private papers are made public.


Even details about the Supreme Court building itself can be difficult to come by. Before the coronavirus outbreak, the taxpayer-funded structure was used 30 to 50 times a year for private after-hours events by groups paying for the privilege, but the court declined to provide a comprehensive list of groups or events. When the iconic red curtains framing the courtroom were replaced a few years ago, the court declined to even name the company that did the job. The court is also not subject to the Federal Freedom of Information Act.

The judges themselves have resisted proposals they consider less than transparent. When asked in 2018 whether the court should allow cameras to televise its proceedings, as Congress does, Chief Justice John Roberts had a simple answer: no. He went on to defend the court’s practices.


“It’s not like we’re doing this in secret. We’re the most transparent branch of government in terms of seeing ourselves at work and explaining what we’re doing,” Roberts said. When the court decides something, the judges generally formulate their reasoning in lengthy opinions. A court spokesman once benevolently compared the openness of the court to a “goldfish bowl”.

But Gabe Roth, executive director of court transparency group Fix the Court, said calling the court the most transparent department is simply wrong. “That is a ridiculous statement and Chief Justice Roberts knows it,” Roth said in an email, calling some of the court’s practices “annoying.”

The decisions of the judges are not always thoroughly explained either. When cases are brought to court in urgent cases and a quick resolution is required, a response from the judges often comes with little or much accompanying reasoning. Judge Samuel Alito defended the court’s so-called “shadow file” last year, saying it was hard to imagine how the court could handle things any differently.


The coronavirus pandemic has, in some ways, pushed the court to be more outspoken. Before the pandemic, a member of the public wishing to hear an argument live had to queue for hours, and sometimes days, in court, or pay someone else to wait, to get one of the seats reserved for the public. But when the court started arguing over the phone because of the pandemic, it began making live audio available.

When the court hearings are more public, the judges themselves still value their privacy. While modern presidents have traditionally published the results of an annual inquiry, judges make their own decisions about the release of health information.


Some are more accommodating than others. Judge Ruth Bader Ginsburg released a slew of health information through multiple bouts with cancer. She nevertheless waited four months in 2020 to find her cancer had returned. That year, Roberts spent a night in a hospital after falling and requiring stitches. His injury wasn’t announced until the next month, and then only because the Washington Post found out about it.

Up until last week’s leak, one of the biggest court secrets of the year was Judge Clarence Thomas’ hospitalization. The court announced in late March, days after his admission, that Thomas had been hospitalized with “flu-like symptoms” and had been diagnosed with an infection. The court ruled out COVID-19 but did not release more details about Thomas’ illness or why he was hospitalized for almost a week, days longer than expected. Had the judges not heard arguments after Thomas was hospitalized, making his absence apparent, it is unclear if anything would ever have been released.


If the judges agree to speak to groups, it is usually left to the group to publicize the event. For example, last week, as usual, the court did not release the fact that Roberts and Thomas spoke in Atlanta. Sometimes events are streamed or recorded live, sometimes not. Sometimes the public is invited, sometimes reporters are not.

The practice of judges is similar to that of Congress, where lists for senators and representatives are not publicly available or available through most routine filing inquiries. In contrast, the President issues a daily public calendar, and his private calendar is recorded for history. Anyone who visits a judge in court is also not public, unless the visitor makes it public.


When it comes to judges’ files, the records made when they decide which cases to take, write opinions, and communicate with their peers are considered the judges’ property to use as they see fit. Judge Thurgood Marshall’s papers were released after his death. But retired judge David Souter donated his papers to the New Hampshire Historical Society with a promise that they would not be published until 50 years after his death.

Perhaps channeling about Justice Black, Souter reportedly told the society’s executive director, “I have an incinerator in front of my house and either you agree 50 years after my death or you go into the incinerator.”


Associated Press contributors Lisa Mascaro and Zeke Miller contributed to this report.

Copyright 2022 The Associated Press. All rights reserved. This material may not be published, broadcast, transcribed or redistributed without permission. For Supreme Court justices, secrecy is part of the job

Justin Scacco

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