Yesterday, Politico published a draft of a Supreme Court opinion that would overturn Roe v. Wade. In the aftermath of the news of the devastation of reproductive rights in the U.S., politicians, journalists, and professional opinion-havers have acted as if the leak was not just a shock but a betrayal of the American system—an unprecedented nightmare, the argument goes. But that’s not true. There is a long history of SCOTUS leaking like a sieve. Time Magazine, for example, published the original Roe v. Wade opinion ahead of its official announcement—but that was far from the first time this has happened.
In the aftermath of the leak, conservative politicians and journalists didn’t celebrate the upcoming ruling so much as they got deeply upset about the leak itself. Elle Reynolds at The Federalist compared the leak to the January 6 riots and said the leak was “what an actual treasonous insurrection looks like.”
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Chief Justice John G. Roberts, meanwhile, directed the Marshall of the Court to launch an investigation into the source of the leak. “This was a singular and egregious breach of…trust that is an affront to the Court and the community of public servants who work here,” Roberts said in a statement about the leak.
But Roberts’ bluster and Reynolds’ hyperventilating ignore the long history of SCOTUS leaks. Jonathan Peters, a media professor at the University of Georgia’s Grady College, went viral on Twitter with a thread detailing the Supreme Court’s history of leaks. “Supreme Court leaks are rare and remarkable, but they are not unprecedented,” Peters wrote on Twitter.
The court has long been leaky, especially when it comes to Roe v. Wade.
All of which is to say: Supreme Court leaks are rare and remarkable, but they are not unprecedented. I've done some research on this, and I'm just sharing for anyone who might be interested in this wider context. /end
— Jonathan Peters (@jonathanwpeters) May 3, 2022
In 1972, the Washington Post published a story about the court’s in-fighting over Roe. v. Wade. “Move by Burger May Shift Court’s Stand on Abortion,” the paper declared. The leak included a memo detailing the court’s internal deliberations.
Seven months later, Time magazine published the court’s original Roe decision just before it was officially announced. A SCOTUS clerk had tipped off the reporter about the decision “on background” with the promise that Time wouldn’t publish before the decision was public. Time had the issue ready to go and SCOTUS delayed its ruling. That led to the magazine article hitting the streets before the Supreme Court’s official ruling did.
The leak pissed off then-Chief Justice Warren Burger. He reached out to his fellow justices demanding to know who had leaked the information and threatened to subject all the Court’s clerks to lie-detector tests. According to Peters, Burger also instituted a “20-second rule” for law clerks. Any of them seen talking to the press would be fired in under a minute.
The leaks don’t stop there. In 1977, NPR’s Ninta Totenberg reported that the Justices voted 5-3 to avoid reviewing the convictions of three Watergate related cases. Two years later, in 1979, the ABC News Supreme Court correspondent reported two rulings ahead of their public release. Burger, who was still Chief Justice, blamed it on the Government Printing Office, which had people in charge of typing up rulings before their release.
The leaks continue to this day. Clerks, justices, and other people with access to information have leaked about Bush v. Gore, the Affordable Healthcare Act, and—now—the overturning of Roe, just as in the 19th century, the court leaked information about its ruling in the Pennsylvania v. Wheeling and Belmont Bridge Company case. On top of all the more spectacular examples, leaking is, as it is everywhere in Washington and everywhere where there are people in power trying to forward their interests, routine. Despite all the Court’s august solemnity, full-time reporters covering it are able to break news about it and its inner workings—including, at times, in highly-detailed behind-the-scenes books—because people up to and including the justices leak.
The U.S. Supreme Court is a political body, an institution made of fallible people who attempt to adjudicate complicated matters of American law. For what are essentially branding reasons, many people want to promote the idea that it is a sacred institution, separate from the day to day politics of American life, a place where priests and philosopher-kings debate esoteric ideas on their merits, unaffected by the world and seeking to affect it only within narrow, rigid bounds. That isn’t true. It never has been.
