Eighteen years ago, in response to some minor revelation about the inner workings of the Supreme Court, a sitting federal appeals court judge wrote a column in the Wall Street Journal decrying the indiscretion. “Like most judges,” this one wrote, “I had assumed that keeping case deliberations confidential was a bedrock principle of our judicial system.”
It has always struck me as curious that the branch of government that conducts searching inquiries into the inner workings of other agencies should insist on secrecy for itself. After mulling over the judge’s op-ed piece, I wrote him an ultra-tactful email, pointing out that the whole point of judicial opinions is to set out the judges’ legal reasoning. If the decision-making process is going to be made public anyway, how can keeping it secret be a bedrock principle? I delicately hinted at one possible explanation: The way judges explain their reasoning has little to do with the way they actually decide cases.
To my surprise, the judge responded with a lengthy, thoughtful email. He analyzed the effect of publicity on judges’ deliberations, pointing out that “judges have tremendous egos and do not easily admit that their original take on a case was wrong.” Secrecy alone allows them to change position without losing face. “Vanity, alas, is a powerful thing.”
There was much else besides, making a persuasive case for maintaining the cordon of absolute secrecy around judges’ chambers. The career of my correspondent, Alex Kozinski, took a disastrous turn in late 2017 when that cordon was breached. His insistence on the importance of maintaining confidentiality took on a different tone after “the total number of women accusing the judge of inappropriate behavior” rose “to at least 15,” according to The Washington Post.