Washington and Lee Law Review Online


When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these moments, even though they technically occurred in public. By operating in this semi-public sphere, the justices have robbed the public of important information about the workings of its Court. This essay adds to the ongoing discussion about transparency by exploring the Court’s “limited public forum” and the ways the justices have found to hide in plain sight.

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