Two Hails For The Chief’s NDA

Last week I wrote about Jodi Kantor’s latest report that Chief Justice Roberts requires Court staff (but probably not the Justices) to sign an non-disclosure agreement. I think this is a good step, but I am skeptical of how helpful it would be. Indeed, even after these agreements have been signed, the New York Times continues to write about leaks.

My latest essay for Civitas Outlook offers a different proposal to address the phenomenon of leaks:

There is a better way: the more the Court opens up, the less need there will be for disclosures. Instead of trying to futilely plug the dam to stop leaks, the Court should release a safety valve. The justices can start by holding regular press conferences. . . . In an ideal world, there would be no need for the justices or their surrogates to leak information to the press. But in the real world, this need exists. In my view, press conferences could be a vehicle to relieve some of that pressure. The justices would not disclose confidential information about the Court, but they could address lingering concerns and perhaps reduce the incentives to leak further.

As they say, read the whole thing. I admit this idea may seem crazy at first blush, but press conferences would serve purposes for both the Justices and the public.

Here is my conclusion:

Who will watch the watchmen? If anything, these press conferences would give the justices a chance to forcefully push back against the unfair attacks on them. This task usually falls to surrogates. Reporters are also far better at asking questions than answering them. I routinely contact reporters who err, and the most common response is somewhere between denial and indignation. On balance, these press conferences would let the American people hear the justices in their own words. And in doing so, the Court would relieve pressure and help to clamp down on leaks. To use another metaphor, perhaps the best remedy for the so-called “shadow” docket is sunlight.

This piece is part of a broader series of works on potential reforms the Court might take that would not exclusively benefit either side of the aisle.