Only in the second half of the 20th century did courthouse doors really welcome all persons, regardless of race, gender and ethnicity. Congress, creating new rights for consumers and employees, supported access by funding legal services. Class actions enabled pursuit of claims. Information poured out, as technologies let people read briefs online, watch proceedings streamed live, and download data on courts’ budgets. Courts demonstrate how to have civilized debates about deeply contested views of what law is or ought to be.

In contrast, the public face of private dispute resolution depends on what providers decide to put on it. Information may dribble out, through corporate disclosure statements, academic studies, state mandates for disclosures (such as insurance payments for malpractice) and anecdotes.

Delaware’s program points to a broader problem: the growing privatization of judging and the closing of access to courts. The Supreme Court has accelerated this trend through its expansive interpretation of the Federal Arbitration Act of 1925, intended to ensure that if parties’ contracts include private arbitration, federal courts would enforce them.

In a series of recent decisions, the court stretched that law to apply to consumers and employees, with no bargaining power over terms. For example, purchasers of cellphones and prospective employees are frequently required to sign “contracts” replacing court access with procedures companies choose. These are take-it-or-leave-it deals. If you want a cellphone or a job, you have to agree to private dispute resolution.

Because of this one-sidedness, many state courts refused to enforce boilerplate waivers of access when claimants argued that companies violated consumer protection or anti-discrimination laws. Those courts reasoned that the arbitration clauses were profoundly unfair (“unconscionable” is the term). Yet the Supreme Court has repeatedly relied on that 1925 law to pre-empt state law and enforce such “contracts.” The Delaware judges are invoking those precedents to legitimate in-court secrecy.

The Delaware legislation is a dramatic example of rich litigants using their resources to close court systems that taxpayers support and constitutions require. But the problem goes beyond Delaware. To honor constitutional commitments that “all courts shall be open,” the court should refuse the Delaware judges’ request, and Congress should restore rights to public courts for consumer and employment disputes.