Supreme Court May Soon Rule If The First Amendment Requires Disclosure of a Secret Court’s Major Rulings.

( The Supreme Court may soon decide whether it will hear a case brought by the American Civil Liberties Union and at one point heard by Judge Merrick Garland, who now serves as the U.S. Attorney General.

Six months before Garland was selected by President Joe Biden as the nominee for attorney general, he was a judge on the case. In that former role, he wrote an opinion about how important it is that the justice system is open. He forcefully argued that all court decisions are public documents.

He wrote:

“Indeed, since at least the time of Edward III, judicial decisions have been held open for public inspection. At bottom, [this] reflects the antipathy of a democratic country to the notion of ‘secret law,’ inaccessible to those who are governed by that law.”

In August, Garland — now as the Attorney General — told the Supreme Court that the public didn’t have a right of access under the First Amendment to any secret decisions a federal court issued.

On October 8, the Supreme Court will hold a private conference where the justices will decide whether to hear the case at hand. The ACLU case concerns decisions that are issued by the Foreign Intelligence Surveillance Court.

While the two cases are not exactly the same, they both dealt with electronic surveillance. The differences between the cases Garland heard as a judge and is now arguing as attorney general concern different legal theories and different laws.

The newest case was filed by two groups that don’t always see eye to eye. They are libertarian group Americans for Prosperity Foundation and the left-leaning Brennan Center for Justice.

The ACLU is using Garland’s point that he wrote regarding secret law as a framework for this new case. As the brief they filed reads:

“Secret law of all types causes several concrete harms that are antithetical to democratic norms. Secret law prevents the public from understanding and shaping the law and thus inhibits democratic accountability; disables checks on governmental abuses of the law; and weakens the quality of the law itself.”

The surveillance court in question was created by the Foreign Surveillance Act of 1978. It rules on requests for surveillance made by government entities as they relate to national security measures.

The government is traditionally the only side that makes an argument in the case. What’s more, much of the work the court does is a secret, because of necessary government reasons.

One of the problems with that, though, is it interprets federal laws in a way that can have huge consequences.

That all changed when Edward Snowden leaked surveillance information in 2013. Congress then passed a new law called the USA Freedom Act of 2015, which in part said officials with the executive branch had to make public “to the greatest extent practicable” any decisions from that court that included a significant legal determination.

The ACLU filed a motion with the court seeking disclosure of any major decisions that were issued between the 2001 terrorist attacks on September 11 and when the law was passed in 2015.

Now, the Supreme Court will decide whether it will hear the case, which could have huge ramifications on the court and surveillance outcomes in general.