Supreme Court Justice Neil Gorsuch said the court must balance “transparency” with space for “candid conversations” among the justices after a string of leaks roiled the court.
Gorsuch, a 2017 appointee of Donald Trump, sat down with Fox News Sunday’s Shannon Bream for a rare interview, two weeks after the court was hit by a bombshell New York Times report based on leaked internal memos.
The memos, which revealed the origins of the court’s secretive “shadow docket,” add to numerous humiliating leaks that have plagued the court, including when Politico was given a draft decision of the 2022 Dobbs v. Jackson case that overturned the federal right to an abortion.
Gorsuch, 58, told Bream, 55, that he believes the “system’s working pretty much as it has for a very long time,” and that he has a “good time” disagreeing with his liberal counterparts.
“Does it hurt the role of the court if those things become public—conversations or documents, those kinds of things?” Bream asked.
Gorsuch, part of the court’s 6-3 conservative majority, noted that audio of the court’s hearings is available to the public, while adding, “Like everything else, it’s a balance in life, right?”
“We want some transparency, but we also have to leave room for candid conversations and deliberations with one another,” he said. “Anybody can listen to our arguments. But do we need time to actually talk quietly with one another? To find those places where we can reach agreement? Yeah, we do.”
Bream pressed, “Do you think it hurts the public’s confidence in the court when those things leak out, maybe out of context, from those private discussions?”
Gorsuch, who was promoting his new children’s book, Heroes of 1776: The Story of the Declaration of Independence, sidestepped the question, again stressing that the court publishes audio and its opinions in full.
He reiterated that transparency should be balanced with the “opportunity” for the justices to “be able to have some time to talk to one another candidly, you know, after we heard the arguments, before we issue our opinion, to try to find where we can come to agreement.”
The Supreme Court’s Public Information Office did not immediately respond to a request for comment.
The New York Times report revealed internal squabbling between the court’s conservative and liberal justices in the lead-up to the court’s quick 2016 ruling against the Obama-era Clean Power Plan, a turning point when Chief Justice John Roberts’ court began bypassing traditional procedures to issue rulings on the shadow docket.
When colleagues warned Roberts that he was breaking precedent by striking down Obama’s environmental policy before it had even moved through the courts, he acknowledged it was unusual but brushed aside their concerns with reasoning unrelated to the Constitution.
“I recognize that the posture of this stay request is not typical,” he wrote, but said that Obama’s plan to regulate coal-fired power plants was “the most expensive regulation ever imposed on the power sector,” and argued its scope and cost to the industry demanded immediate action from the court.
While the court used “shadow docket” rulings to block Obama, it has relied on them to allow Trump to push through his agenda throughout his second term. The opinions are largely unsigned and often lack the detailed reasoning that traditional rulings provide.
Liberal justices Sonia Sotomayor and Ketanji Brown Jackson both sounded the alarm last month over the court’s use of the emergency docket, with Jackson noting that when she clerked for the Supreme Court in 1999, the “shadow docket” was used almost exclusively for death row inmates.
