The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I recently had occasion to re-read New York Times v. United States, the Pentagon Papers Case. Footnote 3 of Chief Justice Burger's dissenting opinion speaks to our present moment:
With respect to the question of inherent power of the Executive to classify papers, records, and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.
I agree entirely. The ball is in Chief Justice Roberts's Court.