Alternative title: Transparency and openness for thee but not for me

I was in Mexico City when an entire draft opinion in one of the Supreme Court (SCOTUS)’s abortion cases was leaked to the public (see here), so I am a little late to this party, but I have been wanting to chime in for two months now. In brief, the leak was denounced by the usual suspects (see here, for example), and the chief justice even called the leak “a betrayal” and ordered the Supreme Court marshal to conduct an internal investigation. I, however, want to offer a different perspective. To the point, I want to defend the leak and heap praise on Alito’s mysterious leaker. After all, in this particular case the leak did not threaten “national security” (whatever that means). More generally, if SCOTUS is going to continue deciding political cases and continue insisting (falsely, by the way) that it has the “final” word on questions of constitutional law, then why should SCOTUS judges (I refuse to call them “justices”) get to operate in total secrecy after oral arguments? On the contrary, I would argue that in cases involving politics (abortion, affirmative action, gun control, etc.) the public has some right to know what SCOTUS judges are up during their deliberations. SCOTUS is not an oracle; it is a branch of the federal government, a branch that has given itself the counter-majoritarian power of “judicial review,” a power that is nowhere to be found in the text of the Constitution. (To be continued …)