Jonathan Peters
@jonathanwpeters
It's remarkable, the leak of what appears to be an initial draft majority opinion. SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations. But the Court does occasionally leak, and it has leaked before about Roe v. Wade. 1/x
Its recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release.
Consider the 1852 case Pennsylvania v. Wheeling and Belmont Bridge Company. Ten days before the Court handed down its decision, the New York Tribune reported the outcome.
Two years later, the bridge case returned to the Court, and again the Tribune scooped the justices before they made their decision public. Later that year, the Tribune published a running account of the deliberations in Dred Scott.
Historians have speculated that these leaks came from Justice John McLean, who authored the first bridge opinion before dissenting in the second one, as well as Dred Scott.
More recently, in 1968, New York Times reporter Fred Graham wrote a story about Justice Fortas’s extrajudicial activities to support the Vietnam War, after a law clerk leaked the details to Graham.
The 1970s brought a wave of leaks. First, Justice Douglas in June 1972 wrote a memo to his colleagues about Roe v. Wade. Somehow, it reached the Washington Post, which published a story about the memo and the Court’s inner deliberations.
Then, Time magazine published a story about Roe v. Wade before the court announced it, reporting the outcome and the vote. Infuriated, Burger demanded a meeting with Time’s editors, chastising them for scooping the court.
The chief justice believed a law clerk was to blame, so he ordered all clerks not to speak to reporters. This resulted in what became known as the “20-second rule”: Any clerk caught talking to a reporter would be fired within 20 seconds.
In 1977, NPR penetrated the justices’ conference by reporting that they had voted 5-3 not to review the convictions of three defendants in the Watergate cover-up cases.
The story, obtained by Nina Totenberg and confirmed by the New York Times, also reported that Burger had delayed the announcement of that decision so he could try to recruit the fourth vote necessary to review the convictions.
A couple years later, Burger was still fighting leaks. In 1979, he reassigned a typesetter at the Court’s printing office after concluding that the typesetter had leaked nonpublic information to ABC correspondent Tim O’Brien.
Not long before, O’Brien had reported in advance the outcome of a case involving the right of courts to question reporters about their thoughts during the editorial process. O’Brien then broke another story in 1986, when he scooped the justices on a decision re: budget balancing.
O’Brien reported that on a particular day the Court would strike down a key part of a law. He was right about the outcome but not the day. Years later, a UPI reporter said Burger intentionally delayed the decision: “Burger was ticked off and just wanted to stick it to…O’Brien.”
Other leaks have been more retrospective. In 2004, for example, a group of law clerks from the 2000 term leaked to Vanity Fair the details of the secret deliberations in Bush v. Gore.
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