An Open Court
NYT, September 18, 2011
The Reporters Committee for Freedom of the Press proposed last week that the Supreme Court adopt a new rule saying every document filed in or by the court “shall be available to the public for inspection” unless it orders that the document be sealed. That presumption of openness would be in the interest of everyone — the Supreme Court, lawyers who practice before the court, scholars who study the court and, of course, the American public.
It is sometimes necessary to restrict public access to court documents — to protect privacy, genuine secrets and people in danger, and for other reasons. But in the last 18 years, the court has gone from allowing records to be sealed in two cases per term to 24 last term out of 9,066 petitions for review. While the fraction remains tiny, the increase is disturbing.
Informed self-government is essential to a healthy democracy. The First Amendment’s guarantees of free speech and press are intended to ensure that. It is important that the Supreme Court’s rules reflect its long-stated preference for the open administration of justice.
The court has ruled that access to proceedings and records in criminal cases can be limited only in exceptional circumstances. Federal appeals courts have said so convincingly about civil proceedings, including records. But the Supreme Court needs a clear rule that ensures transparency whenever possible.
The Reporters Committee urges the court to adopt a rule about the presumption of public access like that of the United States Court of Appeals for the Seventh Circuit. Judge Frank Easterbrook of that circuit wrote, “The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat.” His argument is compelling.