Roberts Forces Clerks To Sign NDA, Protects Court Integrity

Chief Justice John Roberts has moved to formalize secrecy at the Supreme Court by requiring clerks and staff to sign nondisclosure agreements, a shift framed as protection of deliberations after high-profile leaks; this article examines the reasons behind the change, the media’s role in exposing internal discussions, and the political implications of converting norms into legal contracts.

The court’s decision to require nondisclosure agreements is straightforward: it aims to stop internal documents and drafts from reaching the press. From a conservative perspective, this is about preserving an institution that has been weakened by breaches of trust and by staffers who treat access as a political opportunity. The move replaces an informal honor system with a concrete legal mechanism meant to deter leaks and protect deliberative confidentiality.

The coverage from outlets like the New York Times treats the shift as alarming and indicative of a court hiding something, but that interpretation misses a central point. When anonymity and secrecy in reporting are used to publicize private deliberations, the institutional cost is real. The court has to ensure its processes are respected, and NDAs are a practical step toward that end.

The chief justice acted after a series of unusual leaks of internal court documents, most notably of the decision overturning the right to abortion, and news reports about ethical lapses by the justices. Trust in the institution was languishing at a historic low. Debate was intensifying over whether the black box institution should be more transparent.

Instead, the chief justice tightened the court’s hold on information. Its employees have long been expected to stay silent about what they witness behind the scenes. But starting that autumn, in a move that has not been previously reported, the chief justice converted what was once a norm into a formal contract, according to five people familiar with the shift.

Leaks like the one that revealed the Dobbs draft in 2022 made it obvious that norms alone could not stop motivated insiders. The leak altered the public’s perception of the Court and set off a torrent of commentary and partisan pressure. The institution cannot function if its working drafts and private debates become fodder for media scoop culture.

Media outlets often present these disclosures as public service, but reporting from anonymous insiders has consequences. When reporters publish confidential internal materials for the sake of an exclusive, they incentivize more leaks. The result is a cycle that erodes confidentiality and makes deliberation vulnerable to outside manipulation.

The justices are accustomed to controlling what the public knows about their work, sealing nearly everything but their oral arguments and written opinions behind a high wall of secrecy. Courts are excluded from the open records laws that require many other government bodies to maintain and make available internal information.

The justices claim their papers belong to them, not the government or the public, and generally arrange to have them locked away until long after their deaths. The court releases no visitor logs to reveal who meets with the justices.

But in 2022, in a shock to many at the court, someone leaked a draft of the court’s decision overturning the federal right to abortion to Politico, which published the document weeks before the justices had intended to make it public. The court conducted an investigation of its staff but mostly spared the justices, and the source was never publicly identified.

There are deeper ethical questions that the court must confront about staff loyalty and impartiality. If clerks treat their roles as stepping stones for political activism rather than as guardians of legal process, then trust evaporates. Formal NDAs are not an insult to transparency; they are a tool for safeguarding an institution that requires internal candor and quiet reflection to operate fairly.

Critics will argue that NDAs stifle necessary scrutiny and shield potential misconduct, and that is a legitimate concern in a democracy. At the same time, unchecked leakage produces chaos and politicizes every draft and memorandum. The better path is to strengthen internal accountability while ensuring that serious ethical violations are addressed through clear, transparent procedures rather than through media spectacle.

More recently, The Times has been regularly publishing stories illuminating the court’s inner workings, including accounts of sensitive debates among the justices.

In September 2024, The Times published an article describing how the chief justice pushed to grant President Trump broad immunity from prosecution. The article quoted from confidential memos by the chief justice and other members of the court who applauded his reasoning. Weeks later, the chief justice abruptly introduced the nondisclosure agreements, after the term had begun.

From a Republican viewpoint, protecting the court from partisan leaks is part of protecting the rule of law and preventing the politicization of legal reasoning. The controversies over the so-called shadow docket and emergency orders are real, but they do not justify turning private deliberations into public theater. NDAs aim to restore a baseline of professional discretion so the court can do its constitutional work without constant external disruption.

So long as the court enforces these agreements fairly and follows up on serious allegations through proper channels, the shift should be seen as a move to stabilize a badly shaken institution. If leaks continue, then the court will have to consider stronger enforcement and clearer consequences to preserve the integrity of its process. For now, NDAs are the court’s answer to a culture that turned secrecy into a competitive advantage for media outlets and political actors alike.