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When the Supreme Court debates the constitutionality of the federal “partial birth abortion” law next month, it will have some sensitive information in its hands that no member of the public can see. Specifically, the justices will have the full transcript of a 2004 deposition by an Oregon doctor who apparently mentioned the names of colleagues in the American College of Obstetricians and Gynecologists who may have performed abortions. It was part of the file in the case of Gonzales v. Planned Parenthood, but when it made its way to the Supreme Court this summer, the organization and Planned Parenthood requested that the parts of the doctor’s deposition that name doctors be filed with the Court under seal. Solicitor General Paul Clement concurred and filed a motion, and on Oct. 2, the Court said yes�one of six cases that day in which the Court granted motions to file petitions under seal. It was, according to a database search, the largest number of unrelated cases in which the Court granted such motions in a single day. In the Planned Parenthood case, the Court’s action means an extra measure of privacy for a handful of physicians. As Daniel Edelman, a lawyer for the physician who was deposed, put it, “The last thing we’d need is for some lunatic to get names from the deposition and go and attack one of the doctors.” But in some of the other cases, the justification for secrecy is less obvious. And to some, the day’s actions symbolize a little-noticed trend over the past decade toward allowing secret filings at the Supreme Court. Whereas decades ago such motions were discouraged and often denied at the Supreme Court, now they are routinely granted. No motion to file under seal has been denied since 2003. The Court itself votes on the motions without any hearing at which opposition can be heard. Typically, when the Court grants a motion to seal, a redacted version is made part of the public record. The number of filings under seal is still tiny�only 12 in this calendar year out of more than 7,000 petitions filed. And Court insiders assert that the spike in motions granted is a fluke, not a reflection of any change in policy. “This may just be an outlier year,” says Thomas Goldstein, a partner at Akin Gump Strauss Hauer & Feld who has studied the numbers. [Editor's note: Goldstein writes a column for Legal Times.] But the number of cases filed under seal was significantly lower in the 1990s and 1980s, and sealing files was rarely done before then, reflecting the Court’s historical preference for conducting its business in public. Stephen Shapiro, co-author of Supreme Court Practice, says that especially with the current mix of business and intellectual property cases, as well as post-9/11 disputes, the conservative Court, under both William Rehnquist and now John Roberts Jr., may be more sympathetic than it once was to sealing Court files. “Conservative justices might believe that a seal was proper to protect trade secrets and real government secrets, bearing on national security,” says Shapiro, a partner at Mayer, Brown, Rowe & Maw. But Shapiro sees the trend permeating all federal courts, not just the Supreme Court, and he is concerned. “Filings under seal are attempted in cases where the seal is not necessary or proper, and the Court should be watchful to prevent abuses of this kind,” Shapiro says. At the Supreme Court level, he says, it is often a matter of convenience for lawyers on both sides of a case to leave under seal a filing or opinion that was sealed by a judge at an earlier stage. IN THE SHADOWS That appears to be the explanation in at least one of the motions for filing under seal granted on Oct. 2. In Cooperativa de Seguros de Vida v. FAC, a dispute over Medicare reimbursement claims, the district judge sealed his own opinion to protect the terms of a settlement that was reached between the parties. Alan Horowitz of D.C.-based Miller & Chevalier, who wrote the petition for COSVI, says, “Why the district court ordered it sealed is not clear to me.” He adds that almost everything that was sealed in the district court opinion was detailed in the public opinion of the U.S. Court of Appeals for the 1st Circuit. Horowitz asked the high court clerk’s office if he could omit the district court opinion from his petition, hoping to avoid the need to seek permission to submit it under seal. But the answer was no, so the motion to file a sealed appendix was the only option. The petition itself is public, with the appeals court decision attached. If the Court grants review in the case, Horowitz says, he’ll likely ask the district court to unseal the original opinion. “This case is not really emblematic of anything,” says Horowitz. “It’s just an oddball situation.” But private petitioners are not the only ones that seek to file papers under seal. The state of Maine did so in Rowe v. New Hampshire Motor Transport Association, and the motion was granted Oct. 2. At issue is whether Maine’s law prohibiting the sale by mail of tobacco products to minors is pre-empted by a federal law that bars states from regulating air and land delivery services. United Parcel Service, one of the carriers affected by the case, requested that certain information in the record about how it tracks deliveries be kept confidential. Both parties tried to narrow the amount of text to be redacted, but some remained, according to Maine Deputy Attorney General Paul Stern. “I sent it over to UPS, and there were only a couple of small things they wanted redacted, and we said fine,” says Stern. “I didn’t care. We didn’t particularly want to ask for sealing.” The brief as filed with the high court contains several blackened lines of type masking sentences that appear to refer to UPS procedures. Stern adds, “You can get an excellent understanding of the case without these facts.” Other cases in which the Court allowed redacted filings on Oct. 2 include Jane Doe v. United States, a Pennsylvania case in which the petitioner sought to protect “sensitive grand jury proceedings.” SEND IN THE CLOUDS The Court’s preference for keeping its files public goes back decades. One milestone was the landmark Pentagon Papers case of 1971, in which Solicitor General Erwin Griswold asked the Court to allow it to file secret briefs and even to hear the case in camera. Over the objection of three justices in New York Times v. United States, the Court rejected the proposal for a closed oral argument, but it did permit some filings under seal. The Court even enshrined the public interest in open court records in a 1978 case, in which it said, “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” That case was invoked in the 2003 litigation over the McCain-Feingold campaign finance law. The Court still granted a dozen motions to seal different parts of the massive briefing in the case, including records of Federal Election Commission investigations in which witnesses had been promised confidentiality. Most of the time, motions to seal records are made without objection, but in a post-9/11 case, M.K.B. v. United States, media organizations sought to intervene. At both the district court and 11th Circuit levels, the case and filings were secret. It was only through an error at the appeals court clerk’s office that a reporter for the Miami Daily Business Review, a sister paper to Legal Times, was able to determine what the case was about: a habeas proceeding brought by Mohamed Kamel Bellahouel, an Algerian native who had been held in federal prison in part because as a waiter, he had served meals to two of the 9/11 hijackers. When the petition reached the Supreme Court, several media organizations�including ALM, which publishes Legal Times�sought to intervene to open the record. The motion was denied.
Tony Mauro can be contacted at [email protected].

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