London Daily

Focus on the big picture.
Monday, Aug 04, 2025

Analysis: Supreme Court privacy vs. your right to privacy

Analysis: Supreme Court privacy vs. your right to privacy

Edward Lazarus was a clerk to Supreme Court Justice Harry Blackmun, author of the 1973 Roe v. Wade decision. Here's what Lazarus has to say about the court's secrecy and the recent leaked draft opinion that would rescind American women's right to an abortion.

There is some weird irony in the case of the Supreme Court and privacy:

*  The leaked draft opinion that would overturn Roe v. Wade would jeopardize Americans' constitutional right to privacy.

*  The leaking of the draft is a violation of Supreme Court justices' ability to deliberate in private.

"Absolutely appalling," Chief Justice John Roberts said of the leak.

Two-thirds of the country opposes overturning Roe v. Wade, according to a new CNN poll conducted by SSRS and released Friday.

The core of conservative justices poised to revoke American women's right to an abortion -- Roberts does not appear to be among them -- isn't required to consider how it would change the country.

The court is insulated -- a group of nine people unaccountable after their lifetime appointments and who are choosing rights for a nation of more than 330 million.

What little we know about the Supreme Court comes from journalism and memoirs. Justices can choose to share their papers after they retire. Or not.

How secret is it? Read this wonderful story from CNN's Joan Biskupic about the paper shredding, closed-off computer system and other ways justices and their clerks usually keep their deliberations out of public view.

Who is in charge? Biskupic also has a look at Roberts, the chief justice who now appears ineffectual.

The shocking leak of the draft opinion brings new scrutiny to the third branch of the US government, which wields so much power and is so unknown to most of the population.

I talked to Edward Lazarus, who was a clerk from 1988 to 1989 to Justice Harry Blackmun, author of the 1973 Roe v. Wade decision. Lazarus wrote a book, "Closed Chambers," first published in 1998, about secrecy at the court and how it should and should not change.

Our conversation, conducted by email and lightly edited, is below.

How would the writer of the Roe v. Wade decision look at this?


WHAT MATTERS: You clerked for the Supreme Court justice who wrote the Roe v. Wade decision. What do you think Justice Blackmun would say about Justice Samuel Alito's draft opinion overturning it?

LAZARUS: Justice Blackmun believed passionately that Roe was correctly decided as an original matter and, moreover, that the evolution of society had served only to vindicate his position.

He would have been terribly dismayed by the draft opinion as wrong on the law and, no less importantly, wrong in failing to appreciate the larger implication for gender equality.

What's behind the court's code of secrecy?


WHAT MATTERS: Your book was scandalous because it broke a sort of code of silence among former clerks. Is there an actual code? How is secrecy enforced at the court?

LAZARUS: "Closed Chambers" was unusual because it was the work of a former clerk writing critically about the court and, in particular, raising alarms that the court was becoming hyperpoliticized.

I wrote it more than 20 years ago (many years after I clerked), and unfortunately it has proven prescient.

There is a clerk code of conduct strictly prohibiting the kind of contemporaneous leaking that just occurred. As for enforcement, the leaks we saw this week are unprecedented. Policing this kind of conduct hasn't been necessary as far as I'm aware.

Should the court be less walled off from Americans?


WHAT MATTERS: The court walls itself off from society. Fences have been erected to cut down on protest there. Cameras are still not allowed at arguments. Most Americans don't approve of the court perhaps in part because most probably don't know what's going on inside. What's the argument for keeping the court cloistered away from the people, and why is that argument flawed?

LAZARUS: The court is too secretive. Oral arguments should be televised. The justices' papers should become available after an appropriate interval (not at the whim of retired justices), so that over time, the public can better understand what's going on inside such an important public institution.

In other words, the work of life-tenured, unelected justices should be more accessible and also subject to more rigorous historical scrutiny.

But that is a far cry from opening up the contemporaneous decisional process inside the court, which will inhibit the kind of frank discussion and disagreement that is essential to a deliberative body like the Supreme Court.

No, this leak is not helpful


WHAT MATTERS: Roberts views his role, in large part, as defending the institution of the court -- and he seems to prize its secrecy. He lashed out at the leaking of Alito's draft opinion. Do you think we should actually see more draft opinions? Would that be a step in the right direction?

LAZARUS: I would be surprised if all the justices aren't upset about the leaks, as we all should be. The disclosure of draft opinions undermines the process of internal deliberation, which is essential to the court's proper functioning.

What's the best way to fix the court?


WHAT MATTERS: There is serious talk, mostly among Democrats, about reforming the court -- such as expanding the number of justices or giving them set terms instead of lifetime appointments. A White House commission studied the issue last year. What are your thoughts on these larger, systemic proposals?

LAZARUS: I very much doubt that we're going to see meaningful reform of the court.

But leaving practicalities aside, I have long favored the idea of limiting justices to a single 18-year term (as opposed to life tenure).

If properly instituted, that would regularize the processes of retirement and nomination/confirmation that have become so highly politicized because the timing of retirements or deaths is so unpredictable and politically fraught.

With a fixed term of 18 years for each justice, you could make it so that every president would get two appointments each presidential term.

That would do away with some of the destructive gamesmanship in the confirmation process and also, over time, make it more likely that the court would remain in tune with the body politic.

There are counterarguments, of course, but on balance I think this would be a very salutary change.

Newsletter

Related Articles

0:00
0:00
Close
UK's Online Safety Law: A Front for Censorship
Nationwide Protests Erupt in Brazil Demanding Presidential Resignation
Parents Abandon Child at Barcelona Airport Over Passport Issue
Mystery Surrounds Death of Brazilian Woman with iPhones Glued to Her Body
Bus Driver Discovers Toddler Hidden in Suitcase in New Zealand
Switzerland Celebrates 734 Years of Independence Amid Global Changes
U.S. Opens Official Investigation into Former Trump Prosecutor Jack Smith
Leaked audio of Canada's new PM Mark Carney admitting the truth about the Net Zero agenda: "We're gonna make a lot of money off of this."
China Enforces Comprehensive Ban on Cryptocurrency Activities
Absolutely 100% Realistic EVO Series Doll by EXDOLL (Chinese Company) used mainly for carnal purposes
World Economic Forum founder Klaus Schwab: "In this new world, we must accept... total transparency. You have to get used to it. You have to behave accordingly. But if you have nothing to hide, you shouldn't be afraid."
Meet Mufti Hamid Patel, head of Office for Standards in Education in Pakistan
George Soros tells the World Economic Forum: "President Trump is a con man and the ultimate narcissist, who wants the world to revolve around him."
Hamas are STARVING the hostages.
Decline in Tourism in Majorca Amidst Ongoing Anti-Tourism Protests
British Tourist Dies Following Hair Transplant in Turkey, Police Investigate
Poland Begins Excavation at Dziemiany After New Clue to World War II‑Era Nazi Treasure
WhatsApp Users Targeted in New Scam Involving Account Takeovers
Trump Threatens Canada with Tariffs Over Palestinian State Recognition
Trump Deploys Nuclear Submarines After Threats from Former Russian President Medvedev
Trump Sues Murdoch in “Heavyweight Bout”: Lawsuit Over Alleged Epstein Letter Sets Stage for Courtroom Showdown
Germany Enters Fiscal Crisis as Cabinet Approves €174 Billion in New Debt
Trump Administration Finalizes Broad Tariff Increases on Global Trade Partners
J.K. Rowling Limits Public Engagements Citing Safety Fears
JD.com Launches €2.2 Billion Bid for German Electronics Retailer Ceconomy
Azerbaijan Proceeds with Plan to Legalise Casinos on Artificial Islands
Former Judge Charged After Drunk Driving Crash Kills Comedian in Brazil
Jeff Bezos hasn’t paid a dollar in taxes for decades. He makes billions and pays $0 in taxes, LEGALLY
China Increases Use of Exit Bans Amid Rising U.S. Tensions
IMF Upgrades Global Growth Forecast as Weaker Dollar Supports Outlook
Procter & Gamble to Raise U.S. Prices to Offset One‑Billion‑Dollar Tariff Cost
House Republicans Move to Defund OECD Over Global Tax Dispute
Botswana Seeks Controlling Stake in De Beers as Anglo American Prepares Exit
Trump Administration Proposes Repeal of Obama‑Era Endangerment Finding, Dismantling Regulatory Basis for CO₂ Emissions Limits
France Opens Criminal Investigation into X Over Algorithm Manipulation Allegations
A family has been arrested in the UK for displaying the British flag
Mel Gibson refuses to work with Robert De Niro, saying, "Keep that woke clown away from me."
Trump Steamrolls EU in Landmark Trade Win: US–EU Trade Deal Imposes 15% Tariff on European Imports
ChatGPT CEO Sam Altman says people share personal info with ChatGPT but don’t know chats can be used as court evidence in legal cases.
The British propaganda channel BBC News lies again.
Deputy attorney general's second day of meeting with Ghislaine Maxwell has concluded
Controversial March in Switzerland Features Men Dressed in Nazi Uniforms
Politics is a good business: Barack Obama’s Reported Net Worth Growth, 1990–2025
Thai Civilian Death Toll Rises to 12 in Cambodian Cross-Border Attacks
TSUNAMI: Trump Just Crossed the Rubicon—And There’s No Turning Back
Over 120 Criminal Cases Dismissed in Boston Amid Public Defender Shortage
UN's Top Court Declares Environmental Protection a Legal Obligation Under International Law
"Crazy Thing": OpenAI's Sam Altman Warns Of AI Voice Fraud Crisis In Banking
The Podcaster Who Accidentally Revealed He Earns Over $10 Million a Year
Trump Announces $550 Billion Japanese Investment and New Trade Agreements with Indonesia and the Philippines
×