The Right of Access
The public's right to see how courts work, through two overlapping ideas: a common-law right to inspect judicial records, and a First Amendment right of access to court proceedings. Both start from a presumption that the courts are open.
Open courts are a check on the judiciary. If the public can watch trials and read the record, it can judge for itself whether judges are being conscientious, reasonable, and honest, and that scrutiny is a large part of why people trust the courts at all. The law protects that openness from two directions. The common law gives a right to inspect and copy judicial records. The First Amendment gives a right to attend proceedings. The two overlap but are not identical, and each has its own limits.
Neither right is absolute. Courts can seal records or close a hearing to protect privacy, safety, or national security, but the presumption runs toward openness, and the burden is on whoever wants the door shut. The live fights are at the edges: sealed dockets, secret filings, and, as the piece below argues, the enormous share of federal decisions that are never published at all.
The Common-Law Right of Access
Inspect and copy the recordLong before the First Amendment entered the picture, the common law gave the public a right to inspect and copy public records, including judicial records and documents. The point is accountability: open records let people see how courts actually decide cases, which the Supreme Court has tied to public confidence in the administration of justice. In Nixon v. Warner Communications (1978) the Court recognized that right, while making clear it is not absolute. Access can give way to countervailing interests, and there the Court let a statute's own process for releasing the Watergate tapes stand in for direct access to the court's copies.
The First Amendment Right of Access
Experience and logicSeparate from the common law, the First Amendment carries its own right of access to court proceedings. Richmond Newspapers v. Virginia (1980) held that the public and the press have a constitutional right to attend criminal trials. The Court later built a test for when that right reaches a given proceeding, asking two questions: has this kind of proceeding historically been open (experience), and does openness play a positive role in how it functions (logic). The Press-Enterprise cases applied that test to jury selection and to preliminary hearings. Where the right attaches, closure requires an overriding interest and narrow tailoring, not just a good reason.
The Presumption of Openness
Sealing is the exceptionBoth strands start from the same default: court records and proceedings are presumptively open. Privacy, trade secrets, the safety of witnesses, and national security can all justify sealing in a given case, but the party asking to close the courtroom or seal the file carries the burden, and the remedy is supposed to be the narrowest one that protects the real interest. This is the terrain of the fights over sealed dockets and secret filings, where transparency advocates push courts to write local and chamber rules that respect the presumption rather than quietly erode it.
The Unpublished-Opinions Question
An open debateHere is the harder puzzle the Yale piece below raises. An estimated 80 percent of federal decisions are unpublished: short, lightly reasoned dispositions that are never compiled in an official reporter and may not reach Westlaw or Lexis at all. If the right of access rests on the public's ability to scrutinize how judges reason, the argument goes, a system in which most reasoning is effectively invisible, and in which judges can choose what to publish, sits in tension with that rationale. The 2006 adoption of Federal Rule of Appellate Procedure 32.1 stopped circuits from forbidding citation to unpublished opinions, but it did not make them systematically accessible, and circuits still split on when to publish at all. This is a scholarly and advocacy argument, not settled law, and it is worth understanding on its own terms.
Are Unpublished Opinions Inconsistent with the Right of Access?
Katrin Marquez argues that because the vast majority of federal decisions are unpublished and never officially compiled, the practice is in tension with the right of access. The case study is Ricci v. DeStefano, the New Haven firefighters' Title VII dispute that a Second Circuit panel disposed of by a brief unpublished summary order, and that the Supreme Court later reversed 5 to 4. It is a student blog post for the Media Freedom & Information Access Clinic, an argument rather than a neutral explainer, and it reads that way.
See also Freedom of the Press, which covers why the press gets no special right of access beyond the public's, and the tracked concept public access to judicial proceedings.