By Joan Biskupic, CNN legal analyst and Supreme Court biographer
Supreme Court justices take extraordinary precautions to protect their internal deliberations. They swear their clerks to secrecy. They destroy the documents. They never reveal in advance when specific decisions will be announced.
Some justices even object when colleagues arrange to have their private papers turned over to the Library of Congress decades later when they die.
But their quest for secrecy has not prevented the public release of a first draft opinion, a stunning 98-page document in an abortion case for the ages.
After Politico on Monday released Judge Samuel Alito’s draft opinion that would overturn Roe v. Wade of 1973, Chief Justice John Roberts focused on “this betrayal of confidences in the Court”.
He ordered the court marshal, overseeing the building’s regular police force, “to initiate an investigation into the source of the leak”. The chief justice said nothing about whether additional resources could be committed to the effort, whether outside experts could be brought in and whether the findings could become public.
Much is unclear about the investigation, and it remains unclear whether the source of Politico’s disclosure will ever be known. But what is certain is the court’s extreme will to keep secrecy in all sorts of operations, even those that have nothing to do with the deliberation of a case.
Regardless of this violation, the general lack of transparency of judges is increasingly the subject of debate, including by President Joe Biden’s bipartisan commission on court reform.
Among the problems: that judges often issue late-night orders without a recorded vote or explanation; that they keep secret certain procedural rules relating to when cases are accepted for review; and that they do not have a formal code of ethics and do not explain recusals and potential conflicts of interest.
They ban cameras in the courtroom, and some judges go to great lengths to prevent the media from holding their speeches off the bench by limiting pre-announcements, banning recording, or banning reporters altogether. They refuse to divulge even basic information about their health and hospitalizations.
Yet the deliberative process regarding cases is quite another matter. The tribunal rightly wants to ensure frank internal debate and allow for persuasive negotiation and change of opinion. His ultimate decisions affect people beyond dueling litigants, affecting the lives and freedoms of others across the country and often moving financial markets.
In this case, if the judges overturn nearly half a century of women’s abortion rights, they will upend constitutional privacy rights and cloud the domestic choices and economic lives of many Americans.
Thus, the decision-making process remains intensely private. According to tradition, the nine meet alone in a small oak-paneled conference room next to the chief justice’s chambers as they discuss and vote on a case. (A preliminary vote takes place a few days after the closing arguments; votes may change as opinions are drafted and circulated in the months that follow.)
After this first session at what judges call “the conference,” individual judges inform their lawyers of the outcome, and clerks help research and write opinions. Clerks – each judge employs four per annual session – closely monitor all developments in a case and the ongoing private discussions between the judges.
When clerks are hired each summer, before the start of the annual term in October, they take an oath of confidentiality. Over the years, Chief Justices have reminded clerks of their commitment as the term comes to an end at the end of June and public expectations rise.
Roberts usually decides which judge will write the court’s leading opinion. If he himself is not in the majority on the case, the most senior judge in the majority assigns the opinion of the main court. (The lead judge among the dissenters attributes the primary opinion on this side, although the judges are free to write additional dissenting or concurring statements.)
In the Mississippi abortion controversy, Judge Clarence Thomas was apparently the most senior member of the five who sought to overturn Roe v. Wade. Thomas would then have entrusted the notice to Alito. Once a judge begins to write the opinion of the court, he tries to maintain a majority or, in the parlance of the court, “to hold five”. The author responds to requests for change in language and justification, trying to accommodate one colleague without alienating another and losing the majority.
Some judges have told CNN in the past that they haven’t painstakingly edited their colleagues; rather, they seek to ensure that they agree with the result and the reasoning.
Alito’s Feb. 10 draft, as published by Politico, has no doubt been the subject of several drafts before, and other majority justices are likely writing separate concurring opinions, adding their particular views to a reproductive rights case of such magnitude. Several dissents may also be in progress.
From legal notebooks to tatters
Some judges are beginning to write their opinions on legal notepads; others go directly to the computer. All draft opinions are printed and distributed among the nine chambers by court officers. There would therefore be electronic and paper copies of the draft opinions in all the chambers of the judges.
Discarded documents are shredded and burned.
Individual judges often keep draft opinions and memoranda associated with cases. Early drafts, at least of past cases, can be found in the Judges’ Archives at the Library of Congress and in some law libraries.
Regardless of what is backed up, the court has detailed rules on what materials clerks can remove from the building and on the use of its dual computer systems. Former clerks told CNN that court notices are only supposed to be processed on the closed internal computer system, not the one through which judges, clerks and other employees communicate with strangers.
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Sources tell CNN that court employees are careful to lock their offices and shred sensitive documents. But judges sometimes travel with their work, and like all institutions that have rules for using computers and protecting documents, compliance depends on the people involved. Roberts said in his Tuesday statement that the disclosure stemmed from “a singular and flagrant breach of trust.”
“We at the Court are fortunate to have a workforce – permanent staff and paralegals – intensely loyal to the institution and dedicated to the rule of law,” he said.
Roberts tried to maintain tight control over court operations. During closing arguments last December in the Mississippi abortion case, in fact, he expressed his disapproval of the arrangements the former justices made with the Library of Congress.
He referred to documents in the archives of the late Judge Harry Blackmun, the author of Roe, which became public more than three decades after the 1973 ruling.
Roberts said the documents were “an unfortunate source” and said there were “good reasons not to release the documents so soon”.
With the release this week of a contemporary first draft, those decades-old archival documents have become the least of the judges’ worries.
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