An extraordinary closed-door oral argument that cleared an entire floor of the U.S. Court of Appeals for the D.C. Circuit last week is still a mystery, with only hints and speculation circulating about the issues and players involved.
Here is another unknown: What will happen if the case is appealed to the U.S. Supreme Court? Will the justices clear their court chamber like the D.C. Circuit did, and leave the public and press outside, scratching their heads?
Not likely, if Supreme Court tradition holds. A quick survey did not reveal recent instances where the high court has kept the public out of its oral arguments—even in sensitive cases like Ex Parte Quirin in 1942, which involved German saboteurs.
One exception may be informal hearings held years ago by individual justices in emergency matters that resulted in so-called in-chambers opinions. The late Justice William O. Douglas would sometimes summon lawyers to make their arguments in the woods near his Yakima, Washington, summer home—without press or public present.
But the closest the full court came to holding arguments in private was in 1971, when the justices hastily held hearings in New York Times v. United States, the so-called Pentagon Papers case. The Nixon Justice Department, trying to prove that the leaked papers contained top-secret national security information about the Vietnam War, asked the court—in secret—to hold the oral argument “in camera,” or behind closed doors. Lower courts, including the D.C. Circuit, had held closed arguments at earlier stages of the case.
But the Supreme Court said no by a 6-3 vote, with only Chief Justice Warren Burger and Justices John Harlan and Harry Blackmun indicating they would have agreed to in camera arguments. Burger announced the court’s decision as the argument began on June 26, 1971.
As a condolence prize, Burger also stated that “counsel may, if they wish, submit arguments in writing under seal in lieu of the in-camera oral argument.” Solicitor General Erwin Griswold in fact did submit materials to the court under seal.
Why did the high court, which is not always a champion of openness and transparency, turn down such an urgent request for closed-door arguments from the government?
“The case was of enormous public interest,” Floyd Abrams recalled. Senior counsel at Cahill Gordon & Reindel, Abrams was part of the New York Times team in the Pentagon Papers case. “The issues raised were themselves bedrock First Amendment ones, and it might have seemed incongruous if not inconsistent for the court to hear part of such a case in secret.”
Abrams added that “the government had filed in secret—so secret that we (inexcusably) hadn’t even been timely served with it!—a separate brief setting forth the government’s position as which documents in the Pentagon Papers were supposedly the ‘hottest.’”
That ability of parties to submit filings under seal may help explain why closed hearings have not taken place at the Supreme Court in other cases.
At lower courts, facts from the record may be discussed at oral argument more frequently than at the Supreme Court, where loftier constitutional and statutory issues can fill up argument time without getting into factual details.
“The justices may feel that anything that is sensitive can be taken care of in the briefing,” said Ira Matetsky, a partner at Ganfer Shore Leeds & Zauderer, a Supreme Court history buff and editor-in-chief of The Journal of In Chambers Practice.
The D.C. Circuit this week issued a public ruling in the mystery grand jury subpoena case, but kept secret the names of any lawyers who argued and the identity of a state-owned foreign corporation that is fighting the subpoena. A recent report from Politico suggested the case is tied to the special counsel’s ongoing investigation of Russia’s interference in the 2016 presidential election.
On Thursday afternoon, lawyers for the corporation filed a sealed motion, the first activity in the case since the D.C. Circuit’s opinion. A three-judge panel—David Tatel, Thomas Griffith and Stephen Williams—issued a sealed order two hours later. The substance of the motion and order were not made public.
First Amendment expert Abrams said holding secret Supreme Court arguments could happen someday, “if what was at issue was itself of truly cosmic importance and the threat to national security extremely grave if certain disclosures were made in the course of oral argument.”
In such a case, Abrams said, “the court would surely require an extraordinary showing before it would accede to an in-camera hearing but I don’t think it would simply proceed as if such a hearing was inconceivable. In fact, I think the court would more likely schedule no argument at all rather than one in which the most vital secrets might well be disclosed.”