Secrecy in Lawsuits Has ‘Run Amok,’ Scholars Say

To hear federal appeals courts tell it, sealed filings should be exceptionally rare — and for good reason.

“Legal arguments, and the documents underlying them, belong in the public domain,” Judge Don Willett wrote for the Fifth Circuit in 2021. “American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense.”

Countless appeals courts have agreed, insisting that judicial records are presumptively open and that sealing them requires a very good reason. Trial judges must carefully review materials that parties want to file under seal, those rulings have said, and give a detailed explanation if they decide to withhold them from public view.

But the reality on the ground, two recent studies demonstrate, is starkly different.

One study, from scholars at Stanford and Berkeley who explored data from more than two million federal civil cases, sounded an alarm about “a sealing system run amok.”

“Our findings are startling — and directly refute the notion that sealing practices are operating as designed,” the study’s authors wrote.

They found that judges granted around 90 percent of motions to seal documents. “Dozens of experienced federal judges,” they found, “granted every single sealing request they encountered.”

Relying on data gathered by Reuters for a 2019 investigation of secrecy in federal civil litigation, they found that more than 5,700 cases each year included sealed documents.

The second study, from Elizabeth Rowe, a law professor at the University of Virginia, found that efforts to seal documents have not abated. She identified more than 33,000 motions to seal in the five-year period ending in 2023.

“It’s become quite a problem,” she told me. “A lot of people don’t know the scale and the scope of what’s happening.

The root of the problem may be the adversary system. Judges are used to resolving disputes between the parties, but the parties often agree to secrecy, either expressly or tacitly.

Both studies found that more than 84 percent of motions to seal were agreed to or, more often, uncontested by the other side. Put another way, there was no one arguing on behalf of the public’s right of access.

It thus falls to trial judges to protect the public’s interest in openness, but busy judges apparently don’t always do so.

There are valid reasons to seal some filings, of course. Trade secrets, authentic national security concerns and medical records come to mind. But parties often seek to seal information that will do no more than embarrass them or, worse, hide dangers to public health and safety.

“We can have a debate about the amount of secrecy that is optimal,” Nora Freeman Engstrom, a law professor at Stanford and an author of the first study, told me. “There are all sorts of difficult trade-offs.”

But she added that judges need to do more than rubber-stamp motions to seal the materials that will form the basis of their decisions.

This is not a partisan issue. Perhaps the best recent articulation of what is at stake came from Judge Willett, a Trump appointee.

“When it comes to protecting the right of access, the judge is the public interest’s principal champion,” he wrote. “And when the parties are mutually interested in secrecy, the judge is its only champion.”

Years ago, when I practiced law in the corporate legal department of The New York Times Company, I observed the same thing in litigating challenges to sealed dockets in terrorism cases. Judges would ultimately follow the law, but only after an outsider — usually a news outlet — objected.

“The rights at stake are those of the public,” I wrote in 2000 in The Journal of Law and Policy. “And the public should not have to rely on a newspaper’s decision to allocate resources to the vindication of the public’s rights. The responsibility for the enforcement of the public’s procedural rights is lodged with the judiciary itself.”

Professor Engstrom’s study and my article both included a quotation from a 1980 opinion by Chief Justice Warren Burger.

“People in an open society do not demand infallibility from their institutions,” he wrote, “but it is difficult for them to accept what they are prohibited from observing.”

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Other Things Worth Knowing About

• A 15-year-old fell asleep during a field trip to a Detroit courthouse while a judge talked about his career. The judge, Kenneth King, according to the student’s lawsuit, responded by ordering her to be detained for hours in a holding cell, handcuffed, dressed in a jail jumpsuit and subjected to a fake trial streamed on the internet during which he threatened to send her to “juvie,” scaring her with, as the lawsuit put it, “vulgar stories of beatings and feces.” The Sixth Circuit last week rejected Judge King’s argument that his conduct was entitled to absolute judicial immunity and allowed her lawsuit to proceed.

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Mailbag

What’s Up With the White House Ballroom Order?

We’ve gotten a bunch of questions from confused readers about the brief order Chief Justice John Roberts issued on Friday letting President Trump keep working on his 90,000-square-foot White House ballroom while the full court decides how to handle the issue.

I asked my colleague Ann Marimow, who covers the Supreme Court, to clear things up. Here’s Ann:

The confusion came in part because the chief justice acted on his own, in a one-sentence order known as an “administrative stay.” The chief justice did not include any reasoning or a timeline for the court’s next steps, saying only that it would be in place “pending further order of the undersigned or of the court.”

Why didn’t the full court act? And what did this say about the fate of the ballroom project?

To start, Chief Justice Roberts handles emergency requests from the U.S. Court of Appeals for the District of Columbia Circuit, which ruled that the president had exceeded his authority by trying to build the ballroom without congressional approval.

He can handle emergency requests from the circuit on his own. But ordinarily, he would refer any matter of significance to all nine justices for consideration.

We do know the court was facing a deadline. The appeals court had paused its order blocking construction — but only until Friday. Had the court done nothing, it would have taken effect.

So Chief Justice Roberts’s one-line action, paired with the suggestion that something more is likely to come from the court but without a specified timeline, may indicate the nine justices are struggling to reach consensus about how to proceed in a more lasting way.

The court has never publicly defined the standards it relies on when issuing administrative stays, so we can’t wager any guesses about why the chief justice thought one was appropriate here.

Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, provided some insight in a 2024 case into how she thinks about placeholder “administrative stays” issued by lower courts.

The orders, she wrote, “do not typically reflect the court’s consideration” of the underlying merits of a request, but rather freeze legal proceedings. At the same time, she wrote, just because such orders are described as administrative, “does not mean they are value neutral.”

The point is to “minimize harm,” she wrote, and the choice “reflects a first-blush judgment about the relative consequences” of pausing a lower-court ruling versus allowing it to take effect.

By allowing construction to proceed, the chief justice’s order seemed to suggest he might agree with the Trump administration’s assertion that halting the project, which includes a secure military bunker underneath, would do more harm than not. The government told the court that construction is proceeding 20 hours a day, seven days a week with a crew of 250 workers, and that stopping work now would put the president and his family at risk.

The preservationists challenging the project have said the administration’s assertions are just an effort to complete the project before the court can weigh in and essentially “outrun judicial review.”

Ann and I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at the-docket@nytimes.com.

Three years after President Richard Nixon resigned in 1974 as calls for his impeachment over his role in the Watergate scandal grew, he made a memorable statement in a television interview. “When the president does it,” he told David Frost, “that means that it is not illegal.”

I knew about Nixon’s assertion, but I had no idea that he had gone on to publish a long essay in The Washington Star explaining what he had meant. The essay was the subject of a fascinating post on Friday by Michael Dreeben on Just Security, a legal policy blog. Dreeben is a veteran of the solicitor general’s office who has argued more than 100 cases in the Supreme Court.

Plainly stung by the biting criticism his comment had provoked, Nixon provided a lucid, cogent but, in my view, not especially convincing account of presidential power. He insisted that he did not believe that presidents were entirely above the law, and that he had meant only that they had wide latitude in addressing emergencies.

Nixon was a lawyer, and his tone was lawyerly. But his core claim was bold.

“He is not an autocrat,” Nixon wrote of the president. “He does not rule by fiat. His powers are not unlimited. But neither can he be powerless to go beyond the strict letter of existing law — in a limited way, and at times of special need.”

Dreeben’s most recent appearance before the justices was for the government in Trump v. United States in 2024. That was the case in which the court granted presidents substantial immunity from prosecution.

Nixon was pardoned and so never faced prosecution. Under the reasoning of the court’s decision in the immunity case, the pardon may well have been unnecessary.

In his post, Dreeben said he heard an echo.

“The Nixon and Trump presidencies are eerily similar,” he wrote. Both presidents were at war with the federal bureaucracy, with journalists and with other perceived enemies, Dreeben said, adding that he believed both had misused the I.R.S. and the Department of Justice.

But Nixon, Dreeben wrote, “could only have dreamed about the power that Trump has flexed.”

As for Nixon’s famous assertion, it was not so very different from one that Trump posted on social media last year: “He who saves his Country does not violate any law.”

Please send me your comments on secrecy, ballrooms, presidential power or anything else at the-docket@nytimes.com. See you next week. — Adam