There have been several instances, dating back decades, when the outcomes or inner workings of cases have been leaked prior to being officially delivered by the Supreme Court.
“SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations,” Jonathan Peters, a media law professor at the University of Georgia, who has written about court’s leaks, tweeted. “But the Court does occasionally leak, and it has leaked before about Roe v. Wade.”
While Monday’s abortion opinion leak appears to be the first time that a full draft document has emerged in the public realm without the court’s approval, news of the original Roe v. Wade ruling was actually leaked.
In 1972, then-Justice William Douglas had written a memo to his colleagues about the Roe case that somehow ended up with the Washington Post. The outlet had included the memo in a report about the court’s internal deliberations.
Seven months later, Time magazine reporter David Beckwith scooped the court by publishing the milestone Roe outcome and vote that legalized abortion nationwide just hours before the decision was made public.
Then-Chief Justice Warren Burger was reportedly so furious with the leak that he demanded a meeting with Time’s editors so he could chastise them, according to Peters.
Burger believed a law clerk was to blame and ordered them all to not speak to reporters from then on. That move resulted in the so-called “20-second rule” where any clerk who was busted speaking to a reporter would be fired within that time frame, Peters said.
In the late 70s and 80s, ABC correspondent Tim O’Brien had about half a dozen scoops on various Supreme Court rulings. The leaks infuriated Burger, who was still Chief Justice, at the time.
Burger was convinced someone in the court’s print shop was to blame – and ended up reassigning the typesetter he deemed to be responsible in 1979, according to Peters.
More recently, a group of law clerks in 2004 leaked details of secret deliberations in the Bush v. Gore case to Vanity Fair.
And in 2012, CBS News correspondent Jan Crawford broke news that Chief Justice John Roberts had initially sided with conservative justices to strike down President Obama’s Affordable Care Act before switching to form an alliance with liberals.
It still isn’t clear who leaked the latest draft opinion, which was published by Politico. But Chief Justice John Roberts on Tuesday ordered an investigation into what he called an “egregious breach of trust.”
Part of the reason the Supreme Court has only seen rare leaks in the past is that only a handful of people get access to decisions before they are made public, including the justices and a handful of people who work for them.
Legal experts say that while such leaks are rare, they have the potential to cause fallouts among justices and could even effect their willingness to go ahead with the ruling.
“Justices are supposed to be completely insulated from public opinion but any time you have a leak, you have the unusual circumstance of getting some degree of public reaction prior to the opinion being finalized,” Halim Dhanidina, a former Associate Justice of the Court of Appeals in California, told The Post.
“You never know the extent to which public reaction might affect either a justice’s willingness to sign or not to sign.”
Rutgers Law School professors Kimberly Mutcherson and David Noll added: “The most immediate fallout will be a loss of trust among the Justices and an awareness that things said during deliberations are never truly private.
“We suspect this will lead to further polarization on the Court, since Justices will be less willing to discuss matters with Justices they perceive as ideological enemies,” they said in a statement.