We hold the following truths as self-evident:
1. No one ever will trust future draft opinions to remain confidential.
2. Security through obscurity creates insecurity.
3. The confidential jurisprudence cat – where everyone pretended, a la Schrödinger’s boxed occupant, that particularly vital Court cases exist as both upheld and overturned until formally disclosed to launch the annual Running of the Reporters each June – is permanently out of the bag.
Throughout today’s discussion, all sensible folks now accept these aforementioned facts.
Yet few seem to ask: why are these bad things?
Why try to shove that scratching, clawing, fighting-all-the-way feline back in the bag?
Nearly all Executive Branch agencies, as well as NGOs like the American Medical Association & quasi-governmental entities like ICANN, already publish their draft rules for public commentary before instituting new regulations. This period frequently runs to two full months.
Few argue that the Executive Branch or other aforementioned organizations require a rule-making and decision-making process meriting more secrecy.
America’s Legislative branch, featuring the purported World’s Greatest Deliberative Body, publicizes the vast majority of all its sausage making. While members of Congress may vote on bills with massive, last-minute changes, everyone knows the subject, and much of the minutiae, of the questions under consideration.
No one argues that Congress should act more insularly.
What makes the Judiciary so different from its co-equal branches?
After all, five Supreme Court Justices clearly believe that no right to privacy exists in the Constitution, so why should SCOTUS enjoy any more privacy than they would afford American women?
Rather than joining those proclaiming the End of the Republic by investigating the leak of the Dobbs opinion with greater tenacity than the Court typically awards to a death row appeal, Chief Justice Roberts instead could attempt to regain some of the Court’s lost legitimacy by establishing a process for timely publication of all draft opinions as part of an official SCOTUS Public Comment Period process.
Not only could all citizens submit comments on each and every case via a website portal, but legal experts, both those with law degrees and other interested parties concerned with the details of opinions, even could offer their own suggested revisions and additions for draft opinions. With so many people openly disenchanted with the political process, this development at least would help provide everyone – from professionals to stay-at-home parents, from retirees to students – with a voice.
Such a move would not discourage collaboration by any given set of Justices. Instead, by inviting the public into the deliberative sphere, it would recognize that the nine Justices remain neither omniscient nor infallible, moving the Court more in line with Justice Brandeis’ most enduring principle. Sunlight actually may not be the best disinfectant during a pandemic, but a more visible process still benefits all interested parties.
While the Justices’ opinions may shape the country’s future to an extent that matches the impact of few other Americans, they cannot practically and should not even attempt to remain so secretive, as that attitude no longer aligns with the public good. The nine Justices will remain our official arbiters, but a more public process will add a worthy and necessarily democratic element to help balance the inherent elitism of the current process.
After all, if America’s Founding Fathers believed in static originalism, they wouldn’t have established a process to amend the Constitution in the first place.
Just as we therefore must view the Constitution as a draft document itself, one written and then improved twenty-seven times and counting, on our journey to establishing that desired more perfect Union, so do draft opinions develop, over time, and now with more representative contributions from all Americans, into better laws and better Law. However, unlike the Constitution, those draft opinions would not qualify as law, precedent, or even legally-relevant guidance until finalized and formally issued.
Yes, each Justice may need to hire another half-dozen clerks to read through those comments.
Yes, the signal-to-noise ratio likely will remain poor, perhaps terrifying so for those new clerks remanded to Public Comment review duty.
Yes, the process, in fact, may add comparatively little to the existing discussions.
However, the current Amicus Curiae Brief process already allows anyone or any entity to file a brief, as long as the Counsel of Record maintains membership in the Supreme Court Bar.
The institution of a Supreme Court of the United States Draft Opinion Public Comment Process simply will remove the latter qualification for less formal contributions to the public record and extend the commentary period.
Thankfully, the present Amicus process creates the only relevant precedent that Chief Justice Roberts requires to look at this heretofore singular event not as a bug, but as a worthy feature of a more open, more egalitarian Court, one more aligned with the realities of both twenty-first century jurisprudence and a country where the number of active smartphones with recording capabilities soon will eclipse the number of American citizens.
Consider this the opportunity that Chief Justice Roberts clearly seeks to restore some of the Court’s rapidly disappearing honor by helping his beloved institution evolve in line with its vaunted ideals of impartiality.
