NDAs and the Shadow Docket: How SCOTUS has Become “Even More Secretive”

In the United States, the Supreme Court wields extraordinary power.

Handing down decisions that impact everyday lives.

But public trust in the court is at an historic low.

And our next guest reports that steps have been taken to make it even more secretive.

Just as people demand more transparency into its inner workings.

Jodi Kantor is a Pulitzer Prize winning investigative journalist at the New York Times.

And she sat down with Michelle Martin.

Thanks, Bianna.

Jodi Kantor, thanks so much for joining us.

My pleasure.

You are a very distinguished investigative reporter.

You've reported on a lot of institutions.

And in recent years, you've been focusing particularly on the Supreme Court.

In a recent piece, you note that the chief justice of the United States, John Roberts, quietly required court personnel, the clerks, I guess, mainly, to sign these nondisclosure agreements.

This happened back in 2024.

The timing, like, why then?

What happened that you think may have motivated this?

Well, let me set the scene for you.

So it's November of 2024.

President Trump has just been returned to office by voters.

And remember that the court is a very orderly place.

And yet this is a kind of abrupt surprise announcement, and it comes in the middle of the term.

The term has already started several weeks before, and employees and clerks get called into this big, very ornate conference room, and the Chief Justice announces that he wants them to sign NDAs.

And this is a real shift because the court has always had a vow of silence.

People who work there are not supposed to reveal what they know of the real story of how the justices decide the law.

However, it had always been kind of more of a compact and a trust thing.

There were some written agreements in the past, but much later, he was actually asking them to sign NDAs, according to our reporting, that had real legal force that basically threatened people with consequences if they violated this.

A couple of pieces of context, a couple of things that we think spurred this.

I mean, first of all, as we know, trust in the court still is, and at that point was just languishing at a historic low.

Number two, there had been some really unusual disclosures coming out of the court.

There was the Dobbs leak, of course, in 2022.

The decision that essentially outlawed nationwide access to abortion.

Correct.

And somebody leaked it to Politico early.

And so it was published in this newspaper weeks before the justices had intended to make it public.

And then finally, we, The New York Times, had been reporting on things going on inside the court.

Adam Liptack and I had done the behind the scenes anatomy of major cases.

And just a few weeks before the chief justice imposed these nondisclosure agreements, Adam and I had done a behind the scenes reconstruction of the immunity decision, which, as you know, was truly one of the most consequential decisions of our era.

This was before the presidential election.

President Trump was going to be prosecuted for what he did on January 6th, and the Supreme Court awarded him very broad immunity from prosecution.

And we had a story showing how Chief Justice John Roberts guided that process and sort of what the behind the scenes was, what the justices were thinking.

Did he make it clear that this was a condition of employment?

I don't know everything that happened in that meeting, but it was clear that this was something they wanted everybody to do.

And also it was clear that they were really upset that internal documents were getting out from the Supreme Court.

Did he say that?

I mean, do you have any sense of whether he told them that?

That's what the reason was for this.

Right.

I can't quote exactly what he said in the meeting, but it was clear that this was the big concern.

You know, the Supreme Court sits right in the middle of our culture and our government.

They're making huge decisions about our own lives.

But it is very, very, very secretive.

The justices might argue that they're the most transparent form of government because they issue opinions and there are oral arguments, but we are not supposed to know anything about how they decide the law.

Sometimes I'm even talking to a clerk from like three or four decades ago.

And if I ask them something, they'll either say, I can't answer that.

Or sometimes they'll tell me an amazing story and I'll say, OK, can I put that in the newspaper?

And they'll say, oh, no, you could never possibly do that.

It has to be off the record.

That would be a terrible breach.

So it's the idea that they're deliberate.

The decisions that they make are public, but the process by which they arrive at them, they want that to be secret.

They want that to be secret.

There is some real debate about how transparent the court should be.

Well, one side, what I would say, like the traditionalists say, is that the judiciary needs confidentiality to operate, that we want judges to be able to change their minds, to have very open discussions.

We want them to be free from influence.

And so that requires a kind of seal around the place.

Other people push back and say, first of all, that's too extreme.

I mean, you may need secrecy while you're deliberating, but why can't you explain what really happened afterwards?

And what they also say is that it's preventing a real examination of the court at this critical moment because we just don't have enough information about how the law is being decided.

That point is gathering strength, Michelle, because of the court's shadow docket opinions.

As you know, with some of the major decisions in the last year or two awarding President Trump a lot of power to implement his agenda, the court has not explained its rationale.

It's issued some cryptic orders that don't even really like pretend to be explanations.

And that's very surprising in some ways, because courts get their authority from explaining their decisions to the public from saying, even if you don't disagree with us, here's how we're going to show our work.

Here's how we did the math and came to this conclusion.

So so so another question about this, are the justices bound to these non disclosure agreements?

So we asked the court that question, and they would not comment.

Hmm.

Transparency.

Okay.

So, so.

But you're, I mean, suffice it to say that I think you're asking an excellent question because you know, are, are they, is this an, is this a requirement that was imposed just for the little people, for the clerks and the employees, you know, or are they adopting the same standards?

It's a good question.

Do we happen to know what the consequences of violating it are?

So I haven't seen the document, but the consequences were described to me as very hazy.

And what's often the case with NDAs is that they are more meant to intimidate than to really be legally binding instruments.

Enforcing an NDA is really hard because there's a paradox to that kind of document, which is to enforce an NDA, you generally have to bring somebody to court.

And if you're bringing somebody to court, you're making something more public.

You're taking the secret thing that you're trying to conceal and putting it right out there for society to examine.

Some NDAs are quite enforceable, like Michelle, if you and I worked for a chocolate company and we signed NDAs, and if you and I secretly sold the ultra exclusive recipe for the chocolate to a competing chocolate company, I really think you and I could be in trouble in court because of those NDAs.

But this kind of NDA that's about workplace knowledge is a little bit harder to enforce because of what I mentioned.

I mean, it's the legal experts I talked to were kind of puzzled by the whole question.

They were like, okay, so the Supreme Court is going to go to which court to try to enforce its NDA?

And which is the lawyer who's going to represent the Supreme Court?

So anyway, we don't know for sure, but it seems it seems likely that this was an internal show of force at the court designed to say to this population, we are really serious about nothing getting out.

Do you know whether any lower courts have imposed a similar process on their clerks and court employees?

They have to an extent, but it's not that common.

They were kind of lighter confidentiality agreements.

Think of them more like pledges.

You know, like I said, I promise, you know, that I'm going to obey so and so.

But I should say it's not terribly common.

Do you have any sympathy for the fact that people feel like it can be damaging to their relationships and also to their ability to negotiate with each other if their private conversations are put into the public domain?

There is an argument that if their internal discussions were made public, that that would make it harder for people to kind of change sides.

And that would be bad for the country sort of overall, because changing your mind in response to new information is what at least some people hope that people will do.

I think the question is, how come after the decisions are made, we can't understand in so many cases how they got to this result, either because it's a shadow docket case and there's no explanation, or because the opinions and the oral arguments don't tell the whole story.

You know, from a journalistic point of view, as you know so well, the first job of journalism is to scrutinize power.

And so we can't have a Supreme Court sized cutout as a kind of exception to that rule.

You know, our goal is to understand this court on a deeper level to illuminate what's actually going on there and to establish an independent lens through which we can see the justices.

There is so much debate about the Supreme Court.

Should there be more justices on the court?

Should there be age limits or term limits?

We're the only constitutional democracy that doesn't have age limits or term limits for judges.

And we've seen some dramatic results of that lack of a rule.

So when people ask me, like, oh, what should happen with the Supreme Court?

What I say is that as a reporter, my stance is that we need more information.

How partisan are the justices or are they not?

What are their relationships?

Who are they talking to?

What kind of air are they breathing?

Do they actually talk to each other?

Do they actually deliberate?

Exactly.

Also, what is the effect of having that much power for that long?

Michelle, it is so unique in government to be appointed to a position for life, you know, an election as a kind of accountability measure.

They don't have that.

They don't have visitor logs.

FOIA doesn't work for the Supreme Court.

So oh, and also, by the way, the way people treat Supreme Court justices is very extreme.

What do you mean by that?

A lot of obsequiousness, right?

A lot of flattery and then a lot of attack.

And those are very extreme forces that I think are buffeting the justices all the time.

They also live under pretty heavy security cordons now, which is sadly necessary, but really cuts you off from the real world.

And so one of my chief questions about the court is, what is the effect of being in that kind of role for 20 or 30 years?

You know, what's fascinating to me is that this, the Trump administration has been very aggressively seeking to control press access.

I mean, many people will remember that the Defense Department under Defense Secretary Pete Hegseth tried to impose this essentially nondisclosure agreement.

They basically wanted the press corps to only report things that they had decided they were going to announce.

Most news organizations wouldn't tolerate these restrictions, so they left the press room and they turned in their badges.

We also see it's been reported that the defense secretary is administering, you know, polygraph tests to people trying to figure out who's leaking.

That there seems to be a real concern about people internally disagreeing with them and wanting to sort of make their views known outside of the bubble.

And it's just interesting.

I wonder if you see that this move in the court is sort of foreshadowing what happened in other areas of the government.

I think it's a really different culture than the executive branch, but it is in a way true to the court's own culture, which is highly secretive and there has been a struggle for years and years and a push-pull with journalists like me trying to get more information out of the Supreme Court and the Supreme Court really resisting.

The justices have built a moat of privacy around themselves.

You know, also remember that the clerk justice relationship is for life.

The justice in a sense never stops becoming your Ross, you know, and often helps you move forward in your career for years and years afterwards.

So typically, clerks are quite sensitive and nervous about violating any of the court's rules.

And we also know that a former clerk is now on the court.

I mean, Brett Kavanaugh was a clerk.

Oh, almost all of them were.

You could you could argue that that the Supreme Court has become a little bit of a closed society because almost all of the justices clerked, that it it has a kind of self-perpetuating quality to it.

So before we let you go, what about the rest of the term?

I mean, what are some of the consequential cases that you're most interested in coming up?

Look, I know every year in the last couple of years we've said this is really the term to watch.

I mean, it's always true for a different reason.

The reason this year is that we are going to get the court's more complete answers on the parameter of President Trump's powers.

They issued a lot of really important decisions last year.

They were very consequential.

But because they were technically emergency decisions, you know, on the one hand, they had massive real world effects.

On the other hand, they were pauses.

They were, you know, they were temporary.

And I think whether we're talking about the tariff decision or the birthright citizenship case, we are going to get real and more definitive answers on the question of how this court is responding to President Trump and whether they are willing to limit his power.

I've started to see discussions outside of the court on the workings of the court and also sort of the lower courts and asking these questions is, should there be term limits?

You know, should there be age limits?

Should the court expand?

Do you see, you know, outside of the court, any energy around any of this?

The fact that outsiders can't see everything clearly, that it's a hard place to understand, inhibits the kind of debate that you're talking about.

But I will tell you that I think part of what is spurring debate is the reliance on the shadow docket.

And those decisions last year, like one of them was that the US could deport somebody to a third country, meaning a country they had no connection to, with very little process.

There was very little explanation on that decision.

I think that is worrying a lot of people and helping create a kind of bigger discussion about the Supreme Court and how it works.

Jodi Kantor, thank you so much for talking with us.

It's great to be with you.

Thank you so much.