The secrecy surrounding the U.S. Supreme Court derives from a policy set by the fourth Chief Justice, John Marshall, who wanted the Court to issue single, unanimous decisions and to conceal all evidence of disagreement. His critics considered this policy to be incompatible with a government accountable to the people. "The very idea of cooking up opinions in conclave begets suspicions," Thomas Jefferson complained. This criticism has never entirely quieted, but every time things get noisy the Court simply brazens it out. To historians and journalists who are keen to have the Court’s papers saved and unsealed, advocates of judicial secrecy insist that the ordinary claims of history and of public interest do not apply to the papers of U.S. Supreme Court Justices; the only claim on the Justices is justice itself.Jefferson is suspicious of the very device that makes the Court look politically neutral and bound by the strictures of legal analysis.
By the way, I like Lepore's use of the verb "to brazen it out." "Brazen" means "Made of brass" — literally or figuratively — including "Hardened in effrontery; shameless." The OED has, among its quotes for the adjective "brazen," the Jonathan Swift poem "An Epistle to Mr. Gay" (1731)
I knew a brazen minister of state,The verb "to brazen out" means "to face impudently or as with a face of brass." We see this usage in John Arbuthnot's 1712 work: "Lewis Baboon turned honest, and John Bull politician. Being the fourth part of Law is a bottomless-pit":
Who bore for twice ten years the public hate.
In every mouth the question most in vogue
Was, when will they turn out this odious rogue?
"When I us'd to reprimand him for his Tricks, he would talk saucily, lye, and brazen it out, as if he had done nothing amiss. Will nothing cure thee of thy Pranks Nic. (quoth I?) I shall be forced, some time or another, to chastise thee... After I have beggar'd myself with his troublesome Law-Suit..."This is a book about a lawsuit, presented as a metaphor for war. "Lewis Baboon" = the king of France, Louis Bourbon. John Bull = England:
Looks a little like Scalia, no?
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What's next, brazen balls?
Maybe we should all become charter members of Althouse's Brazen Balls - and we can do it through her Amazon portal - http://www.amazon.com/Brass-Balls-Keyring-Keychain-Novelty/dp/B001PV1UK2/ref=sr_1_1?ie=UTF8&qid=1417266123&sr=8-1&keywords=brass+balls
Thomas Jefferson was not the one to complain of "cooking up opinions in conclave." Secrecy, working behind the scenes, and "leading from behind" was Jefferson's SOP.
However, Marshall opposed him, so Marshall's every move was not just wrong, but evil.
Yes, but very many SCOTUS decisions are explained in both majority, concurring and dissenting opinions, which somewhat exposes the political divisions within the conclave. But, wouldn't it be fun to have a web camera stream the debate sessions?
Skipper:
It would not be fun because most of us would have close to no idea what they meant. Without footnotes the arguments would be impossible for lay people and nearly impossible for all but professors of narrow sections of law.
Or, it would reveal at least some of the Justices as lacking. That part might be interesting, I guess.
I read that as "cooking up onions in concave baguettes".
@hagar:: I read that Jefferson hired a journalist to spread the rumor that Washington was senile and was being unduly manipulated by Hamilton. There's quite a lot about Jefferson that's unworthy of the writer of the Declaration of Independence......Frankfurter was a champion of Sacco and Vanzetti. It was the claim back then that there was so much bias against Italian Americans that it would be impossible for them to get a fair trial. I have the sense that were the supporters of Sacco still alive that they would be vehemently opposed to having Scalia and Alioto sit on the Supreme Court.
The NYT has a page 1 story just today about Obama cooking up the immigration change in a secret conclave.
Jefferson is suspicious of the very device that makes the Court look politically neutral and bound by the strictures of legal analysis.
"Look" neutral without being so, by hiding information. Great.
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