The publication of a draft opinion that would overturn a landmark U.S. Supreme Court decision is extraordinarily rare, legal scholars said Tuesday. But it’s not the first time a ruling has been leaked before it was officially released.
Chief Justice John G. Roberts Jr. confirmed Tuesday that Justice Samuel A. Alito Jr.’s draft opinion overturning Roe v. Wade — published Monday evening on Politico — was authentic, but said it was not final. Dobbs v. Jackson Women’s Health Organization, 19-1392 (S. Ct., filed June 15, 2020).
Legal scholars said Supreme Court opinions have leaked before, including in Roe, the 49-year-old case that established the right to abortion in the first place. Roe v. Wade, 410 U.S. 113 (1973).
“The release of an actual draft majority Supreme Court opinion is unprecedented,” said Jonathan Peters, an affiliate professor of law at the University of Georgia School of Law, in a phone interview Tuesday.
But Supreme Court opinions have been revealed early in lawsuits dating back to 1852, according to Peters. Two cases involving whether Pennsylvania had the right to sue a bridge company went before the court, and in both cases the outcome was published in the New York Observer before the opinion was released. Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856).
The New York Observer also published articles on the court’s deliberations over the landmark case of Missouri slave Dred Scott, and whether he could sue in federal court for his freedom. The Supreme Court ruled against Scott.
Justice John McLean, whom Peters said has frequently been identified by historians as the likely source of information on the 1850s cases, published his dissent before Chief Justice Roger B. Taney’s majority opinion. Dred Scott v. Sandford, 60 U.S. 393 (1857).
Roe had several leaks. The Washington Post published a story about Justice William O. Douglas’ memo and the court’s deliberations, and Time magazine published a story revealing the court’s ruling a few hours before it was released by the court.
The leak — from Justice Lewis Powell’s clerk Larry Hammond — was a bit of a fluke, as the court pushed back the ruling’s publication date, Peters said.
The revelation infuriated Chief Justice William E. Burger, who showed up at Time’s Washington, D.C. headquarters to complain, according to a Time interview of the reporter who broke the story, David Beckwith.
Hammond apologized and offered his resignation to Powell and to Burger, but neither accepted it and he remained as a clerk for another term. He faced no criminal charges or any disciplinary action. Several legal experts said the person who leaked Alito’s draft opinion is also unlikely to face criminal charges. They could face bar discipline.
“There is no obvious criminal provision that addresses this type of leak,” Bradley P. Moss, an expert on national security and federal employment law with Mark S. Zaid PC, wrote in an email. “The only provision remotely relevant is 18 USC 641.” However, U.S. Department of Justice policy “would likely countenance against bringing an indictment absent indications of bribery or hacking.”
That doesn’t mean there will not be consequences, especially if the leaker is a court clerk, who signs a code of conduct pledging confidentiality. There is no similar code required of justices, and the only remedy possible is impeachment by Congress.
On Tuesday, Roberts instructed the court’s marshal to begin an investigation into the source of the leak. There was plenty of speculation about possible sources or reasons Alito’s draft opinion, written in February, was leaked now — weeks before it is scheduled to be released.
The Supreme Court, while much less of a sieve than other Washington, D.C. government agencies, has struggled with keeping secrets. ABC News reporter Tim O’Brien got several scoops on unreleased opinions in the late 1970s before Burger fired an employee he guessed was leaking them.
In 2012, CBS News published a report about Roberts originally siding with four conservative justices to strike down the bulk of the Affordable Care Act only to change his mind and side with the court’s liberals.
“Roberts then withstood a monthlong, desperate campaign to bring him back to his original position, the sources said,” according to CBS reporter Jan Crawford. “Ironically, Justice Anthony Kennedy — believed by many conservatives to be the justice most likely to defect and vote for the law — led the effort to try to bring Roberts back to the fold.”
Not all of the leaks involved the media. Ashton F. Embry, a longtime law clerk to Justice Joseph McKenna, resigned in 1919 and was subsequently charged with disclosing Supreme Court decisions in advance to Wall Street traders.
Ten years later, federal prosecutors dismissed charges against Embry, who maintained there was no law at the time against insider trading.
Richard Davis, a professor at Brigham Young University who has written two books about the Supreme Court’s relationship with the media, said the press has tended to avoid trying to publish stories about opinions before the court releases them.
In 1981, United Press International killed a story about an opinion even though reporter Elizabeth Olson got hold of several pages of a dissenting opinion.
“They’ve been so successful at keeping secrets,” Davis said. “There have been so many high-profile cases that have not leaked. Is that changing? Maybe.”