SECRECY IS almost a religion at the Supreme Court and its justices rarely violate the tradition of silence about their decisions.
So, when four justices of the court, including the chief justice, offer public explanations for their rulings -- as they have done recently in the much debated Gannett case -- it borders on being a historic event.
The justices' comments reinforce their critics' complaints that Gannett, which involved public access to criminal proceedings, left a trail of confusion that began within the Supreme Court.
Those who watch the court closely speculate that Gannett and the exchanges that have followed are yet another symptom of trouble within the court, internal tensions among the justices and the increased pressures that come with a subtly political but still tightly closed institution.
Something is clearly out of order, with the case and with the court, when justices reargue the issues in public. In Gannett, the justices are debating not only the press' interpretation of the case, but their own views as well.
Where the consensus, if one exists, lies in Gannett is not easy to tell. Justice Potter Stewart, writing for a disjointed majority in a 5-to-4 decision, said bluntly that in the Sixth Amendment right to a public trial belongs only to the accused, not the public or the press.
In separate opinions, Chief Justice Warren E. Burger said the decision applied only to pre-trial hearings; Justice William H. Rehnquist, with characteristic confidence, wrote that judges need not even give a reason to close any criminal proceeding, and Justice Lewis F. Powell, Jr., noted that the press may have a First Amendment interest in attending pretrial proceedings. The only silent member of the majority was Justice John Paul Stevens, but that didn't last for long.
For every constitutional scholar, there is a different theory of the justices' behavior. Prof. Philip B. Kurland of the University of Chicago Law School, for example, suggests the justices may have a collective "bad conscience" about the tangled and seemingly contradictory opinions in Gannett.
Others say the justices wanted to defend themselves finally against the barrage of criticism in the press that followed the Gannett ruling. Yale Kamisar of the University of Michigan Law School speculates that the justices may have been "so annoyed, so disturbed" by what he described as press exaggeration on the scope of the case that the urge to speak out was apparently irresistible.
While Kamisar believes the press "got it wrong," other constitutional experts, such as Prof. Lucas A. Powe of the University of Texas Law School, contend the press accurately read the broad reach of the case. "The court may have overstepped itself," Powe said in an interview. And, he said, the justices "just dislike the heat" that followed the decision.
Whatever the motivation, the justices' public comments about Gannett have hardly served to clarify the decision. Even if the remarks succeeded in deciphering the case, surely lower court judges cannot rely on out-of-court statements to support their decisions.
Dennis Hutchinson, a former clerk to two Supreme Court justices and now a professor at the Georgetown Law Center, said that comments beyond written opinions put a "gloss on the law" that only confuse litigants.
A fundamental confusion in Gannett is whether the decision applies only to pretrial proceedings, in keeping with the facts of the actual case. It can be said that comments in Stewart's opinion about other types of proceedings, like trials, are simply "dicta" -- observations by the court that are not part of its ruling.
E. Barrett Prettyman Jr., a former clerk to three justices, notes in an upcoming article for the District Lawyer magazine that Stewart's discussion of the case contains more than 80 references to "trials," including his much-quoted statement that the court holds that "the public has no constitutional right under the sixth and fourteenth amendments to attend criminal trials."
Prettyman, a partner at Hogan and Hartson, concludes that such a thorough discussion of an issue is far from the offhanded comments that are commonly labeled dicta. Prettyman believes that is why observers have taken Stewart's comments so seriously -- namely, it appears the question has been decided.
In public comments, the chief justice has said the press misunderstood the limitations of the case. Powell warned that the case should not be read too broadly too soon. Stevens -- no longer quiet -- stated that although some judges may issue "maverick orders," closed courtrooms will not become the routine, as many fear.
It is hard to take much comfort in what the justices have said, considering that there have been more than 50 attempts to keep news reporters out of the courtroom since Gannett was issued on July 2. The variety of opinions has given the lower court judges free rein with those decisions -- and they have taken advantage of it.
Whether the justices agree or not, the lower court judges are obviously mixed up, as their patchwork of decisions since Gannett shows. The law has to be straightened out and the only conclusive way to do that is for the court to take another case in the upcoming term.
Public ruminations by the court about a decision are "unseemly, unbecoming and not helpful to the judicial process," said Chicago's Kurland. Other scholars are concerned that Gannett and what came after may reveal some disturbing vulnerabilities within the court.
The justices, through the recent nature of their decision-making, have become more and more political. But as politicians, "they are terribly thin-skinned," Kurland said.
As the court is drawn further into policy questions, the chance of public attack increases. As the pressure mounts, so, presumably, does the temptation to fight back -- outside the courtroom. But to do so, some scholars say, would show the court's weakness.
There is a good deal of argument about whether the press agitation over Gannett is justified, said Prof. Francis A. Allen, a colleague of Kamisar's at Michigan. But what is Most worrisome," Allen said, is the court's public airing of its sensitivity to that criticism.
"I just think they ought to be tougher than that," Allen said.
There are signals in Gannett, the experts say, that seem to underscore strong division within the court and, perhaps, some personal tensions.
The New York Times has reported that Justice Harry A. Blackman's 44-page dissent in Gannett at one point stood as the majority opinion. An apparent last-minute switch by Powell left Stewart to speak for the majority, in what was to be the opinion for the dissenters.
Changes at the 11th hour have happened before, court watchers said, although this sensitive instance may have left some of the justices -- particularly Blackman -- frustrated.
Not long after the ruling came out, Burger repeated to a Gannett reporter that the decision applied only to pretrial hearings, in line with the facts of Gannett.
Later, Blackmun, in an extraordinary comment to a group of federal judges, said flatly that the chief justice was wrong.
While such remarks may tantalize court watchers who are hungry for the slightest unexpected comment from the bench, extra-judicial debate accomplishes nothing. The Supreme Court should speak through its written opinions, not at lawyers' conventions -- Powell's forum -- or a gatherings of judges or at a law school, which was Steven's choice. Granted, press cases, like Gannett, have never been easy ones for the court. But, while a confusion of opinions like those in Gannett will not do, clarifications don't come about in public speeches.
The experts, however, those who make study of the court their profession, are sure that the justices' public response in Gannett is but a lapse.
"One faux pas by the Supreme Court does not a tradition make," said Powe of Texas.