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Judicial secrecy and the appearance of impropriety

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.

Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals retired in December 2017 after allegations from 15 women he engaged in inappropriate sexual conduct. (Associated Press)

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.

After Kozinski was forced into retirement, Chief Justice John Roberts made a speech and appointed a committee that produced a report that boldly recommended “an ongoing program,” and life within the secret world of tremendous egos continued almost as before.

Until recently, that is, when a doofus judge’s “reply all” once again attracted the observing eye of the press. This story involves federal courts in Washington, DC. A district judge, Emmet G. Sullivan, sent an email to colleagues advising them of a seminar sponsored by the Federal Judicial Center, which bills itself as “the research and education agency of the judicial branch of the U.S. government.” The seminar was devoted to the subject of climate change. Sullivan’s message said, “Colleagues, just FYI.”

Ninety minutes later, Judge A. Raymond Randolph blasted out his vituperative “reply all.” Randolph sits on the D.C. Court of Appeals, often considered the nation’s second most-important court because it hears so many cases of political significance. He ripped into Sullivan for “subjecting our colleagues to this nonsense.” He announced his settled opinion on the subject of climate change: “The supposedly science and stuff [sic] you are now sponsoring is nothing of the sort.” He told Sullivan to get “back into the business of judging, which are [sic] what you are being paid to do.” He added: “The jurisdiction assigned to you does not include saving the planet. A little hubris would be welcomed in many of your latest public displays.”

This all came out in The Washington Post because Randolph’s “reply all” went to staffers all over the courthouse. Several things are immediately apparent, such as that Randolph spent more time on the matter than Sullivan (so who needs to get back to work?), Randolph doesn’t know the meaning of the word “hubris,” and when he’s in the grip of overpowering emotion he loses command of basic English grammar.

It also suggests a tendency to draw conclusions unsupported by evidence, because it’s hard otherwise to get from Sullivan’s “just FYI” to the belief that he was “sponsoring” the seminar.

A hotheaded guy with a closed mind who leaps to unwarranted conclusions – just the kind of judge you’d want to hear your case.

But it gets worse.

According to the Post, until two weeks ago, “Randolph was listed as one of three judges to hear arguments Sept. 6 in a case brought by California and more than a dozen other states challenging an Environmental Protection Agency decision to scrap some vehicle emissions standards.” After the email exchange became a topic of wide discussion, “the court calendar was updated, and Randolph’s name was replaced.”

The problem, you see, isn’t impropriety, but only its appearance. As soon as the public became aware that a biased judge was hearing a case, it became improper for the judge to hear it. You can see why keeping the public uninformed is of such paramount importance.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at