Chilled Chambers: Constitutional Implications of Requiring Federal Judges to Disclose Their Papers Upon Retirement

Abstract

When the cost of transparency rises to the level of unduly interfering with the ability of judges to carry out their constitutionally assigned responsibilities, principles of separation of powers preclude Congress from imposing that transparency. That is what this essay is about—whether, as has been repeatedly proposed, Congress can constitutionally require federal judges, upon retirement, to reveal their internal deliberations through the disclosure of their bench memos, correspondence with colleagues, initial votes at conferences, early drafts of judicial opinions, and other papers.

Keywords: federal courts, executive privilege, unitary executive, separation of powers, judicial power, transparency, judicial papers, freedom of information act

JEL Classification: K00, K19