The U.S. court system historically leads the way when it comes to transparency in government. The Constitution established the right to a jury trial and with it came the longstanding belief that perhaps no part of government deserves more public scrutiny than the courts.
In the U.S., only one court operates in almost total secrecy — no access to its records, deliberations or rulings.
Congress created the court in 1978 through the Foreign Intelligence Surveillance Act. The act empowers the court to rule on requests for electronic surveillance warrants. The 11-judge court almost never refuses government requests. And it has issued only a handful of opinions to the public. The last came in 2007 when it refused a request from the American Civil Liberties Union to make public its judicial order on the Bush administration’s expansion of electronic surveillance. In refusing that request, the court in its ruling described itself as a "unique and uniquely non-public court."
Perhaps, but unfortunately, more and more courts and judges who oversee them have decided to become uniquely non-public. This threatens as much if not more the consistent efforts of other branches to manage the business of the public without public participation. More and more judges order hearings closed, ban journalists from covering trials, close court records and generally treat the public with disdain when it comes to accessing these important venues.
Here is an example of what I am talking about.
Several entities wanted the U.S. Supreme Court to hear a case, hoping its review would reinforce the constitutional right to access court records.
They challenged the seven-year blanket closure of all filings and proceedings in a case pending in federal court in Pennsylvania. A U.S. Court of Appeals for the 3rd Circuit in the case Jane Doe v. C.A.R.S. Protection Plus upheld a lower court’s ruling for the blanket closure. The case took seven years to resolve in the trial court — everything about it closed to the pubic during that time. The case involves a claim of gender-based employment discrimination in violation of Title VII of the Civil Rights Act — not terrorism, national security and related issues that always seem to lead to government secrecy. No one even knew the case existed until a reporter stumbled upon reference to an appeals court ruling on it in a court docket.
What could possibly compel a judge and appeals courts to close all public scrutiny on a wrongful termination suit?
We might never know.
On Nov. 10, the news came that the U.S. Supreme Court gave notice it would not hear the case. That represents another blow to the constitutional sanctity of public access to the courts.
Resources:
- employeeissues.com/blog/abortion-discrimination
- www.rcfp.org/newsitems/7124
- www.rcfp.org/newsitems/6
"In the U.S., only one court operates in almost total secrecy — no access to its records, deliberations or rulings."
And does this court have a name? Or is that secret, too?
United States Foreign Intelligence Surveillance Court
Mac McKerral
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