The Supreme Court Has a Transparency Problem

Chief Justice John Roberts was hospitalized following a fall last month. That we are just learning about that fact now is a serious problem.

[Photo: A young student of color stands in front of SCOTUS as she yells into a megaphone.]
At a minimum the Supreme Court should have an obligation to let the public know when these kinds of events happen. They should be a mandatory part of how the Court conducts its business. Alex Wong / Getty Images

Late Tuesday night, the Washington Post reported that in late June—so just a couple of weeks ago—Chief Justice John Roberts “suffered a fall at a Maryland country club” and hit his head severely enough he required an overnight hospital stay. Neither Roberts nor the Court had publicly disclosed the chief’s fall or hospitalization, and only confirmed the news after reporters from the Post started asking questions following a tip. All of this seems … not great.

I will not speculate on Roberts’ health, and I wish him well. I hope he’s OK. But this lack of transparency by the chief justice and the Court is not only a bad look in a democracy, it’s also a fundamental abuse of power when so many critical issues hang in the balance, to be decided by the whim of Roberts’ vote. 

According to the PostRoberts was hospitalized on June 21. Eight days later, the Court released its opinion in June Medical Services v. Russo, a case in which Roberts joined the liberal wing of the Court to strike down a Louisiana anti-abortion requirement that threatened to devastate abortion access across the South and re-ignite the fight over nonsense TRAP (targeted regulation of abortion provider) laws we all thought had been settled in 2016. 

And despite the fact that it’s July, we’re still waiting on a handful of Supreme Court decisions, including whether President Trump has to ever disclose his tax returns.

But what of the other cases the Court has already decided this term? DACA. The fate of the Consumer Finance Protection Bureau. Whether your boss can fire you for being gay or trans. Whether you have to risk your life in a pandemic to vote. Whether religious schools can discriminate against LGBTQ and students with disabilities. These decisions impact millions of people. Don’t we deserve to know that one of the nine individuals deciding our fate was hospitalized following a fall without damn near submitting a FOIA request? 

Now, do I think the chief justice was cramming in final edits to his concurrence in June Medical Services while possibly being monitored for a concussion, or perhaps even something more serious? No, not really. At least, I really hope he wasn’t because that would be bad medicine in addition to bad work-life boundaries for Roberts to say the least. And look. I rarely if ever have a generous word to say about Roberts, but I’m a firm believer that everyone deserves time to recover from a medical event, including the chief. 

I’m also a firm believer that when one man holds as much power as Roberts does in an institution as dogmatically dedicated to opacity as the Court, it is a surefire sign that Houston, we have a democracy problem.

The Supreme Court did, eventually, release a statement related to Roberts’ hospitalization.

“The Chief Justice was treated at a hospital on June 21 for an injury to his forehead sustained in a fall while walking for exercise near his home,” Supreme Court spokesperson Kathleen Arberg said in a statement. “The injury required sutures, and out of an abundance of caution, he stayed in the hospital overnight and was discharged the next morning. His doctors ruled out a seizure. They believe the fall was likely due to light-headedness caused by dehydration.”

Notably, the statement was silent on why Roberts felt compelled to keep his hospitalization secret until now. 

Did Roberts’ hospitalization impact the Court’s business, and if so, how? The answer to these questions could very well be “no.” But they are answers that Roberts should have been forthcoming with. At a minimum the Court should have an obligation to let the public know when these kinds of events happen. It should not be left to the public and the press to press for these kinds of disclosures. This should be a mandatory part of how the Court conducts its business.