(Photo by Chip Somodevilla/Getty Images)
You’d be forgiven if you thought that Supreme Court ethics were at their nadir. There are multiple recusal scandals — or more accurately, lack of recusal scandals. The Court’s approval rating is in the toilet and justices are having very public squabbles about the Court’s legitimacy. And multiple justices have simply refused to comply with transparency rules.
But it’s about to get so much worse.
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As part of the National Defense Authorization Act, Congress has added a Judicial Security and Privacy provision. Certainly the protection of judges and their families is an incredibly salient issue that needs to be addressed. But this wildly overbroad provision will have a devastating impact on federal judiciary transparency.
Under the proposed law, federal judiciary members would be able to shield information of their family members such as email addresses, social security numbers, bank accounts, and license plates — all of which makes sense. But the bill goes way further and includes general information like birthdays as well as information of legitimate public interest such as places of employment (other than government agencies).
And in case you were unclear about what that means…
Lawmakers have just added a provision to the National Defense Authorization Act protecting Supreme Court spouses from having to reveal any outside employer, in the name of security. If it passes, Ginni Thomas’s professional entanglements would effectively be state secrets.
— Jane Mayer (@JaneMayerNYer) December 8, 2022
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So if you think it is relevant for the public to know if a judge is hearing a case that could have a direct financial impact on the other adult member of their household, TOO BAD! Those who publish the details face legal action and potential fines if not removed.
As you might imagine, plenty of activist groups are concerned about the provision’s inclusion. Gabe Roth of Fix the Court noted the provision “chills speech and could potentially chill investigations into federal conflicts of interest.”
.@demandprogress is urging members of the House to vote NO on the #NDAA because of a Trojan horse "Judicial Security" bill that's really internet censorship for info about federal judges. pic.twitter.com/mmCRNzZPJI
— Daniel Schuman (@danielschuman) December 8, 2022
Now, the bill does provide an exclusion for entities “(e)ngaging in reporting, news-gathering, speaking, or other activities intended to inform the public on matters of public interest or public concern.” But as noted the the tweet above, the Wall Street Journal investigation into judicial conflicts was possible because the Free Law Project requested and published judicial disclosure documents. And as Roth said, the provision is part of a “global pattern of the judiciary trying to push patently unconstitutional and illegal things on the American people.”
While protecting the judiciary is a laudable goal, this is not the way to get it done.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).