Judicial power, although superficially anomalous in a nation committed to regular elections and majority rule, is indispensable to limited government and minority rights. Furthermore, the power exercised by the most important courts serves democracy’s essence, which is a culture of persuasion and accountability: Judges justify their rulings with public reasoning that connects their acts with constitutional and other legal principles.

What is disturbingly anomalous is a court whose jurisdiction implicates fundamental rights, but whose reasoning is made public only at its discretion. Few Americans know that such a court exists. But next week, the Supreme Court will decide whether to accept a case asking it to take responsibility for supervising, and limiting, the secretive practices of the Foreign Intelligence Surveillance Court.

The case is brought by the American Civil Liberties Union, which has unsuccessfully filed motions with the FISC asserting a “qualified” First Amendment right of public access to FISC opinions that contain significant legal analysis. The right is “qualified” by, but not nullified by, the necessity for some secrecy to protect sources, methods and results of intelligence-gathering.

The FISC and the Foreign Intelligence Surveillance Court of Review (FISCR) have, however, declared that they lack jurisdiction to rule on the ACLU’s constitutional claim. So, unless and until the Supreme Court holds that both have such jurisdiction, such constitutional claims have no path to consideration and vindication.

In 1976, a report on a years-long congressional investigation found that intelligence agencies had “violated specific statutory prohibitions” and “intentionally disregarded” legal limits on national security surveillance. Congress, exercising its constitutional power to “constitute tribunals inferior to the Supreme Court,” created the FISC, empowering it to grant or deny government permission for electronic surveillance in foreign intelligence investigations. Congress also created FISCR. Both courts are composed of federal judges.

The ACLU argues that, since then, the FISC’s role has been changed “fundamentally” by three developments: Congress’s expansion of the intelligence agencies’ responsibilities, the “exponential growth” of surveillance technologies and, after 9/11, the FISC’s interpretation of some statutory provisions to permit it to authorize “the mass collection of sensitive records about millions of Americans’ expressive and associational activities.”

The FISC generally hears arguments only by the government seeking permission for activities, and the FISC’s proceedings are secret. Time was, its opinions were almost entirely secret: Between 1978 and 2013, only two were published. In the eight years since then, the FISC has published more than 50 opinions, with national security redactions. But last year, the FISC held that because it is a specialized court handling national security issues, access to its opinions is entirely a matter of its discretion, so members of the public have no First Amendment right to examine its reasoning.

In 2015, two years after Edward Snowden’s disclosure of mass surveillance measures authorized by the FISC, Congress said that the FISC’s opinions should not be presumptively secret. Although Congress exempted opinions prior to 2015, it stipulated the declassification “to the greatest extent practicable” of opinions involving “significant” construction or interpretation of law.

But although, as the ACLU notes, courts routinely exercise jurisdiction over motions seeking access to their records, and although Justice Benjamin Cardozo said the judiciary has “the duty” of publishing its decisions, Congress assigned the review of FISC opinions to the executive branch. This muddied the separation of powers.

And Congress ignored the presumption that judicial opinions regarding limits on government should be available for public scrutiny. In 1980, the Supreme Court said access to judicial proceedings is necessary “to give meaning to” the “explicit guarantees” of freedom of speech and of the press.

The ACLU wants the Supreme Court to hold that the FISC has jurisdiction to review motions for access to its records, including those prior to 2015. And that the FISCR has jurisdiction to assess the validity of denials of such motions. And that the Supreme Court shall have jurisdiction to review denials upheld by the FISCR.

Transparency of judicial processes is crucial to the rule of law, and transparency, albeit limited, of FISC proceedings would enable public understanding of something vital: the scope and importance of government’s surveillance powers and practices. Again, some secrecy serves national security. But some secrecy can be inimical to this.

Intelligence agencies are indispensable but, being necessarily opaque, they are subject to suspicions. As the Supreme Court has said, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”