Transparency is undoubtedly an important principle in a democratic government. It is not, however, necessarily a one-size-fits-all proposition. This holds true for issues of transparency at the Supreme Court. Whereas the Court’s traditional adjudicative responsibilities fit comfortably within norms of transparent decision making like publishing written opinions in merits cases, some of its other, more policy-oriented roles do not. This short paper considers two areas in which the Court’s activities more closely resemble policy judgments than traditional adjudication — certiorari and recusal — and uses them as examples of how the nature of the Court’s activity can impact the value of transparency in that activity. It does not seek to prove that transparency is per se less valuable in certiorari and recusal decisions, but rather to highlight the highly discretionary nature of those decisions and to propose that granting such a high degree of latitude to the Court also triggers some of the protections, like the deliberative process privilege, that are more commonly associated with policymaking by administrative agencies. The result is a call for a more context-based dialogue about transparency at the Court in hopes of promoting both our democratic values and the legitimacy of one of our most important institutions.

Abstention — a federal court’s decision to avoid interfering with an ongoing state proceeding — offers a snapshot into the foundations of our constitutional arrangement. In addition to notions of equity and comity, abstention conjures issues of federalism, the separation of powers, and democratic legitimacy. When abstention intersects with state administrative law, these issues take on new force and, in some instances, new meaning. Unlike state courts, administrative agencies occupy a tenuous position in a tripartite democracy and are tasked with making often difficult and controversial policy decisions. A federal court’s decision to interfere with that policymaking process has consequences for state government far beyond the interruption of a purely judicial proceeding. Yet despite the different stakes raised by administrative abstention, the Supreme Court and the academic literature have largely overlooked the unique interplay between abstention and administrative law. This Article recasts administrative abstention as a distinct species of abstention and evaluates it in terms of the principles of democratic legitimacy and good government that provide the foundation for the administrative state. Only by thinking of abstention in distinctly administrative terms can we fashion a relationship between federal courts and state agencies that protects the legitimacy of state administrative governance while maintaining a robust forum for the vindication of federal rights.