John Roberts’s coerced omerta
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If sunlight is the best disinfectant, we know how Republican elites now feel about fighting infections [gift link]:
In November of 2024, two weeks after voters returned President Donald Trump to office, Chief Justice John G. Roberts Jr. summoned employees of the U.S. Supreme Court for an unusual announcement. Facing them in a grand conference room beneath ornate chandeliers, he requested they each sign a nondisclosure agreement promising to keep the court’s inner workings secret.
The chief justice acted after a series of unusual leaks of internal court documents, most notably of the decision overturning the right to abortion, and news reports about ethical lapses by the justices. Trust in the institution was languishing at a historic low. Debate was intensifying over whether the black box institution should be more transparent.
Instead, the chief justice tightened the court’s hold on information. Its employees have long been expected to stay silent about what they witness behind the scenes. But starting that autumn, in a move that has not been previously reported, the chief justice converted what was once a norm into a formal contract, according to five people familiar with the shift.
Over the years, journalists and authors have sought to penetrate the court, and the justices have tried varying methods to guard its secrets. Some generations of clerks, but not others, said they were asked to sign a different kind of confidentiality pledge.
The New York Times has not reviewed the new agreements. But people familiar with them said they appeared to be more forceful and understood them to threaten legal action if an employee revealed confidential information. Clerks and members of the court’s support staff signed them in 2024, and new arrivals have continued to do so, the people said.
A spokeswoman for the court declined to comment about the nondisclosure agreements. She also did not respond to a question about whether the justices have been asked to sign the contracts.
The people who described the agreements spoke on the condition of anonymity because they were not authorized to speak publicly about court matters.
The justices are accustomed to controlling what the public knows about their work, sealing nearly everything but their oral arguments and written opinions behind a high wall of secrecy. Courts are excluded from the open records laws that require many other government bodies to maintain and make available internal information.
The justices claim their papers belong to them, not the government or the public, and generally arrange to have them locked away until long after their deaths. The court releases no visitor logs to reveal who meets with the justices.
It is not hard to explain who John Roberts would not want the public to know that, to pick an entirely random example, that he took access to healthcare away from millions of poor people based on the well-known legal doctrine “we must do something to damage the Affordable Care Act, and silly as this might be it’s something.” But this is important knowledge for the public to have! It’s remarkable the way the Court has been able to sell the idea that self-serving opacity is actually in the public interest, because the public has an interest in maintaining the “legitimacy” of the Supreme Court. But this is, at least theoretically, a democracy — institutions deserve no more legitimacy than they earn through their actions. And while Roberts is right that more transparency will undermine the Court’s public standing, this is all the more reason why clerks who break the omerta are doing a valuable public service.
At this point I will observe again that one of the most over-the-top defenders of the idea that court employees owe complete secrecy to their employers was…Alex Kozinski.