Two weeks after Donald Trump’s 2024 re-election, Chief Justice John Roberts summoned Supreme Court employees to a grand conference room and made them sign nondisclosure agreements threatening legal action if they revealed what happens behind the Court’s closed doors.
This wasn’t a response to national security concerns. It was a response to the American public learning the truth about how the Court operates.
According to a new report from The New York Times, the Supreme Court has converted what was once an informal expectation of confidentiality into formal legal contracts—complete with threats of litigation. The timing and circumstances reveal everything wrong with the Court’s approach to accountability.
What Prompted the Crackdown
The Chief Justice’s sudden embrace of NDAs came weeks after The New York Times published an article describing how Roberts “pushed to grant President Trump broad immunity from prosecution.” The article quoted from confidential memos by Roberts and other justices applauding his reasoning.
In other words: the American people learned that the Chief Justice was actively advocating to shield a president from criminal accountability. The Court’s response wasn’t to embrace transparency or accountability. It was to threaten employees with lawsuits.
Before this, the Court relied on “softer measures”—lectures to clerks, written codes of conduct, and Roberts referring to court members as “a family.” That system broke down when someone leaked the draft Dobbs decision overturning abortion rights in 2022, and when journalists began regularly reporting on the Court’s internal deliberations.
The Court conducted an investigation after the Dobbs leak but “mostly spared the justices.” The source was never publicly identified. Now, rather than examining why employees might feel compelled to expose wrongdoing, Roberts is threatening them with legal consequences.
A Black Box Institution Gets Darker
The Supreme Court already operates with a level of secrecy that would be scandalous in any other branch of government:
- No Freedom of Information Act compliance: Courts are excluded from FOIA, the law requiring federal agencies to disclose records
- No visitor logs: Unlike the White House, the Court releases no information about who meets with justices
- Justices claim their papers are personal property: Not government records, not subject to public access, locked away until long after their deaths
- Shadow docket decisions with no explanation: Emergency orders that reshape American law, issued with “little or no public rationale”
Since Trump took office, the Court has “repeatedly issued such emergency orders, allowing him to implement his agenda.” We have no transparency into how these decisions are made, who influences them, or what arguments the justices consider.
The new NDAs add another layer to this fortress of secrecy.
Did the Justices Sign Too?
Here’s a telling detail: The Court declined to comment on whether the justices themselves have been asked to sign the nondisclosure agreements.
Employees—clerks and support staff—are now under formal legal contracts. But the nine people making decisions that affect 330 million Americans? We don’t know if they’re bound by the same rules.
This mirrors the Court’s approach to ethics. While other federal judges are subject to binding ethics rules and oversight, Supreme Court justices only adopted their first voluntary code of conduct in 2023—after extensive reporting on undisclosed gifts from billionaires. Even that code has no enforcement mechanism.
The Secrecy Serves a Purpose
Legal experts told The Times that the NDAs may be more effective at “scaring employees than at legally binding them.” But the fear is the point.
As Harvard Law professor Nikolas Bowie, a former clerk to Justice Sotomayor, explained:
“Many of the court’s decisions are being made out of the public eye in a way that makes it difficult to assess or criticize them, or to understand what actually motivated the justices. The lack of transparency makes it difficult for the broader public to know how to respond.”
The secrecy allows the justices to dismiss criticism on grounds that “outsiders don’t know or understand what’s happening behind the scenes.” It lets them conceal weaknesses in their processes. As Bowie noted:
“If the public were aware of how much of the deliberations affecting millions of people are made by 27-year-olds after happy hour, they’d be shocked.”
The Threat of Retaliation
Justice Amy Coney Barrett shared what Justice Scalia used to tell new clerks:
“If you ever leak information now or any point in your lifetime about what happened in this court, I will hunt you down and destroy your career.”
Barrett said she gives her clerks a similar warning, “though in less dire terms.”
This is how the Supreme Court operates: through fear, intimidation, and threats to destroy the careers of young attorneys who might expose wrongdoing. All while claiming to be a “family” dedicated to the rule of law.
Democracy Requires Consent—and Knowledge
As law professor Daniel Epps, a former Kennedy clerk, explained:
“The justices have immense power — they’re not elected. That power depends on our consent as a democracy and we have some interest in seeing how they’re using their power and making decisions.”
You cannot meaningfully consent to being governed by people whose decision-making process is entirely hidden from you.
The justices aren’t protecting legitimate institutional interests. They’re protecting themselves from accountability. From scrutiny of:
- How Roberts lobbied for Trump immunity
- What arguments convince them to grant emergency relief to Trump’s agenda
- How much influence wealthy benefactors have on their thinking
- Whether their decisions are driven by law or politics
- How much work is actually done by 27-year-old clerks versus the justices themselves
The Jefferson Standard
In 1821, Thomas Jefferson wrote that the Supreme Court was “smothering evidence” and that the nation needed to know more about the character of the justices.
Two centuries later, the problem has only worsened. Jefferson’s justices didn’t have lifetime appointments to a court that could overturn federal law, grant presidents immunity from prosecution, or use a shadow docket to reshape society with no public explanation.
The justices claim that privacy protects their independence and prevents “lobbying pressures.” But we’ve seen the opposite: justices accepting luxury vacations from billionaires, attending conservative donor events, and then ruling on cases affecting those same donors—all while hiding behind secrecy.
What This Reveals
The switch to formal NDAs with legal threats is, as law professor Mark Fenster put it, “a sign of the court’s own weakness” and the erosion of trust.
The justices can no longer rely on norms or loyalty to keep their secrets. They can no longer count on clerks and staff to protect them from accountability. So they’re turning to legal coercion.
This is not the behavior of an institution confident in the integrity of its processes. This is the behavior of people who know that transparency would damage them.
Legal experts noted that enforcing the NDAs could backfire spectacularly. To sue an employee for breach of contract, the Court would have to file a public lawsuit, exposing the very information they’re trying to conceal. As Fenster asked: “Who would represent the Supreme Court?”
The Supreme Court suing its own employee to prevent the public from learning how it makes decisions would be the perfect metaphor for where we are: A Court so committed to secrecy that it would undermine itself to maintain it.
The Path Forward
Every other branch of government operates under transparency requirements. The executive branch is subject to FOIA. Congress holds public hearings. Federal agencies must explain their decisions.
The Supreme Court should be subject to the same basic standards:
- Binding ethics rules with enforcement mechanisms
- Public visitor logs showing who meets with justices
- FOIA compliance for court operations and documents
- Explanations for shadow docket decisions
- Recusal standards that apply to all justices
- Term limits to reduce the stakes of secrecy
The fact that Roberts felt the need to impose NDAs with legal threats tells you everything about the current Court. They’re not trying to protect the integrity of judicial deliberations. They’re trying to hide what they’re really doing.
A democracy cannot function when its most powerful, least accountable branch operates entirely in the dark—and threatens anyone who turns on the lights.
The Supreme Court declined to comment on the nondisclosure agreements and did not respond to the New York Times questions about whether justices have been asked to sign them.