IS COURTHOUSE SACROSANCTITY A THING OF YESTERYEAR? By Joel Cohen and Bonnie M. Baker

?Imagine for a moment a pope making a confession at the Vatican. Somehow, the public, having read a scoop imparted to L’Osservatore Romano, The New York Times or even the New York Post, learns of some terrible sin to which he confessed. ?Was the confessional bugged by a detractor of il Papa? Or, assuming the pope isn’t himself to blame for self-revealing to an unreliable confidant, did the confessor priest maliciously shoot his mouth off to a journalist or a scheming acquaintance? If we can’t trust the iconic pillar of confidentiality that the confessional has represented since 1563 – especially when no lesser figure than the pope is involved – is anything truly “sacred” anymore?

We might wonder the same thing about the internal workings of American courts, which have traditionally embraced a steadfast adherence to the confidentiality of judicial decision-making. There was a time that a draft decision of a court remained securely under wraps until the decision was final and intended for public release. And it used to also be that the oral or written communications among judges on a court likewise would remain “in the vault.” Those seemingly inviolable norms bolstered a sense of public trust in the judicial branch, and in particular, in the seriousness and dedication that judges brought to their role as arbiters of justice.

But times have, sadly, changed. In May 2022, someone leaked to the press a draft of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the decision that reversed Roe v. Wade, overturning the abortion rights ruling that had been the law of the land for 50 years. Despite an ostensibly thorough investigation, we still don’t know the identity of the leaker. Nor do we know if the leak was intended to help defeat Roe or to help sustain it. Was the leak intended to buoy the majority or, alternatively, to create a public storm against it that might make some justices who had preliminarily voted with the majority turn tail and vote, in the end, to stick with Roe? While the latter scenario remains the smart money in the eyes of many objective members of the cognoscenti, a violation of the norms of confidentiality for any reason seriously undermines respect for the Supreme Court and faith in the apolitical application of the rule of law.

Fast forward one year, and we are now witness to another gaping breach of confidentiality within the judiciary, this time of a different stripe. On June 20, 2024, The New York Times reported that two federal judges, including the Southern District of Florida’s chief judge – President George W. Bush appointee Cecilia Altonaga – encouraged Judge Aileen Cannon to step off the Trump “classified documents” case. (“Judge in Trump Documents Case Rejected Suggestions to Step Aside” (NY Times, 6/20/24, Savage C. and Feuer, A.)). The article suggests that the two judges were motivated to persuade Judge Cannon to step aside either by her glaring lack of experience, or her general appearance of a bias that had previously resulted in a strongly worded appellate opinion rebuking her for having issued an earlier oddball decision in Trump’s favor. Or, perhaps, both of these concerns prompted the judges to advise their junior colleague to decline the Trump assignment.

But the details of The New York Times story are vague, probably to protect the confidentiality of its sources. As a result, the public doesn’t know who talked to reporters and why they did so. Of course, it is entirely possible that the two judges who reportedly spoke to Judge Cannon actually wanted the story “out” for whatever reason – perhaps to undermine Judge Cannon publicly.? That is, if one believes in the story’s bona fides, their intent would have been to cause indirectly what they seemingly tried unsuccessfully to accomplish directly – ?that is, to get Judge Cannon off the Trump matter.

This uncomfortable uncertainty creates a very real concern that other judges in the Southern District of Florida – and throughout the country – may read this story as a cautionary tale about the worrisome fissures in what they had previously assumed was rock-solid confidentiality of their discussions with colleagues.? As a result, veteran judges may opt to simply keep their thoughts to themselves and decline to give guidance to less experienced judges, lest they find their private discussions plastered on the pages of the newspaper.? Or on the flip side, going forward, will newer judges around the country now hesitate to seek guidance from their more experienced colleagues out of fear that, should they reject their elders’ advice, they will read about it in the press? How could either situation possibly enhance the quality of judicial decision-making, or improve the popular perception of the judiciary? The simple answer: it can’t.

Leaks such as those at issue in Dobbs and the Judge Cannon conversations impair public confidence in the judiciary, fuel negative perceptions of judges, and ultimately undermine trust in judicial review. ?They also chill the frank and candid exchange between junior and senior judges, which can only have a negative impact on the quality of judicial decisions.

One of us (Cohen) teaches a law school class on judging. ?A cone of silence exists regarding disclosures to the class by guest judges.? Novice judges, or those who were once novice no-names, often acknowledge without hesitation that they have sometimes gone to their seniors for advice on how to handle imposing issues with which they lacked experience. Isn’t that the way it should be? Don’t we want judges demonstrating the humility to admit, “I could use some guidance”?? How can judicial colleagues continue to freely obtain or give advice when confidential exchanges among judges or court employees, like the draft opinions exchanged in Dobbs, will potentially become public, maybe for politically motivated reasons?? One of us (Baker) was a law clerk for a federal district judge, and the conversations between the judge and his clerks were understood to be inviolate. Any other assumption would have undermined the free and forthright exchange of ideas that led to well-reasoned, thoughtful judicial opinions. Isn’t that the work product we want our judiciary to produce?

We don’t have the answers to what appears, disturbingly, to be a recurring issue, especially in high-profile cases. Does the solution lie in an enforceable code of judicial ethics, or somewhere else? And who will have the courage and authority to take the lead on stopping the leak problem before it casts a permanent and indelible stain on the judicial branch?

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Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law at Petrillo Klein & Boxer. He is the author of “Blindfolds Off: Judges on How They Decide” (ABA Publishing, 2014) and an adjunct professor of law based on the book at both Fordham and Cardozo Law Schools.

Bonnie M. Baker practices white-collar criminal defense law at Friedman Kaplan Seiler Adelman & Robbins LLP. She previously served as Acting Assistant Professor of Lawyering at New York University School of Law and as an adjunct professor at The New School.

The opinions expressed in this article are strictly those of the authors, and do not represent the opinions of the law firms or their clients.

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