In a case that has received wide attention, the Massachusetts Supreme Judicial Court has issued a decision barring ethics investigators from asking a Massachusetts judge how he reached individual decisions during his 21 years on the bench. This is one of the few published decision to recognize a deliberative privilege for the judiciary, with the court concluding that: “the best approach is to consider this privilege narrowly tailored but absolute.”
The court sided with other jurisdictions that have ruled similarly:
Consequently, we join other courts, State and Federal, that, when faced with attempts by third parties to extract from judges their deliberative thought processes, have uniformly recognized a judicial deliberative privilege. See Williams, supra; Thomas v. Page, 361 Ill.App.3d 484, 491 (2005); In re Cohen’s Estate, 174 N.Y.S. 427, 428 (N.Y. Surrogate’s Ct.1919); Leber v. Stretton, 928 A.2d 262, 270 (Pa.Super.2007); State ex rel. Kaufman v. Zakaib, 207 W.Va. 662, 670 (2000). See also United States v. Morgan, 313 U.S. 409, 422 (1941) (mental processes of judge cannot be subjected to scrutiny; “[s]uch an examination of a judge would be destructive of judicial responsibility”); Grant v. Shalala, 989 F.2d 1332, 1344 (3d Cir.1993) (noting threat to administrative law judges and serious interference with ability to decide cases solely on evidence and law if thought process subject to subsequent inquiry; “[i]t has long been recognized that attempts to probe the thought and decision making processes of judges … are generally improper”); Nixon v. Sirica, 487 F.2d 700, 740- 742 (D.C.Cir.1973) (MacKinnon, J., concurring) (source of judicial privilege “rooted in history and gains added force from the constitutional separation of powers”).