In search for transparency, high court comes up cloudy

WASHINGTON (CN) — Justice Amy Coney Barrett read the first opinion from the high court bench in over two years on Monday, but you wouldn’t know unless given a coveted seat in the courtroom. 

Unlike Supreme Court oral arguments, opinion announcements are not livestreamed for a public audience. While the announcements are for the most part performative and otherwise published in full online, court watchers have long marked the failure to broadcast these sessions as indicative of a larger problem. 

Such criticisms sharpened last week when the court divulged details about its investigation into the leak of a draft opinion from the 2022 term. Not only was the entire investigation inconclusive, but the report published Thursday was silent as to whether any of the nine justices themselves were questioned. 

“The conclusion of the report altogether is problematic because — not to be disrespectful of the court — but I have to say it strains credulity, it really does,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. 

It is stated in the report that investigators did not produce any results despite access to employee phone records, emails and computers, as well as the ability to interview these employees.

“The fact that they can't figure out who did it either means it was not a very good investigation or, worse, they know who or suspect who did it and decided not to look too hard because they didn't want to find out,” Lawrence said. 

Rampant speculation and questions from reporters resulted in a statement Friday afternoon from the court’s marshal, Gail Curley, who conducted the leak probe, confirming that she spoke with all of the justices during the investigation. At an institution where the definition of words is often debated for hours on end, the distinction between “spoke with” and “interviewed” seems notable. The justices were also not subject to sworn affidavits like all other employees who were interviewed during the investigation. 

“It is part of a long-term trend of the court wanting to give the public appearance of transparency but not actually delivering,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in an email. “If the justices were rigorously questioned, why wasn't this disclosed at the start?” 

With the court no closer to naming a suspect behind the May 2022 leak, the public is left with yet more questions about the nine individuals who are supposed to be some of the most respected within government. 

“This is not just about idle curiosity in the workings of the court …This is more than that,” Lawrence said. “This is about public trust in one of the three branches of government, and that is a very, very significant issue.”

If the court’s reputation suffers from these slights, it couldn’t come at a worse time. The court’s recent tendency to favor conservative ideologies has put its legitimacy on a knife edge. 

“As atrocious as it was, the leak is not what is hurting the court's reputation,” Richard Bernstein, an appellate lawyer, said. “Americans have common sense, and they know that unfortunately every branch of government or other entity will occasionally have a leak. What hurts the court's reputation are too many decisions that, without adequate explanation, track the political ideologies of the justices in the majority.”

Those calling for court reform long held up the failure to livestreaming oral arguments as an easy window for transparency. The court gave in to this issue only when the outbreak of the coronavirus pandemic in 2020 kept the justices along with most Americans at home. Though the broadcasts have continued even after the court reopened its doors to the public, the court has not offered any timetable for livestreaming the announcement of opinions.

These sessions are recorded, but audio is not released by the National Archives until the start of the court’s next term.

Follow @KelseyReichmann

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit