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SCOTUS IS LEAKING

Is the US Supreme Court leak of Roe v. Wade opinion unprecedented?

Protesters at the US Supreme Court
Reuters/Jonathan Ernst
Protesters react to the leak of a draft majority opinion which would overturn Roe v. Wade.
  • Scott Nover
By Scott Nover

Emerging tech reporter

Published

The Supreme Court is in crisis mode. On May 2, Politico obtained and published a 98-page draft majority opinion, authored by Associate Justice Samuel Alito, which, if adopted, would overturn the landmark Roe v. Wade decision from 1973, which recognized a woman’s constitutional right to have an abortion.

The news itself is monumental. Reversing Roe would lead to a patchwork of state abortion laws across the country, allowing many anti-abortion state legislatures to ban or severely limit legal abortions within their borders.

But the leak itself is also monumental. The US Supreme Court is a famously tight-lipped institution that guards its deliberations from the public eye. While information has leaked to the press in the past, such incidents are extremely rare. Jonathan Peters, a media law professor at the University of Georgia School of Law, says he only knows of one other leaked draft opinion in modern court history. But this week’s leak—which the chief justice John Roberts authenticated as a draft from February, written months before the Court is due to announce its final decision in June—is unprecedented in its size, scope, and importance.

Quartz talked to Peters about the Roe leak, the Supreme Court’s history of leaks, and how this news could change the inner dynamics of the Court.

This interview has been edited for length and clarity.

How unprecedented was this leak?

I think the leak is incredible. The justices historically have been very good at keeping their secrets. But there is something of a history of leaking at the Court. It dates back to the mid-19th century. But in the course of modern history, I can think of only one other time when the draft of an opinion reached a member of the press before the opinion was released. But it was not a full draft of a majority opinion and ultimately it was not publicly released.

That was back in 1981, a case involving Elizabeth Olson, who was a reporter for [the news agency United Press International]. She obtained a document appearing to indicate in advance the outcome of an important sex discrimination case. Olson wrote a story about it, but UPI’s Washington bureau chief spiked it because he said that he had no way of confirming that it was authentic or accurate. He characterized it in later interviews as eight pages unsigned and undated. It appeared to be a dissenting opinion and he said that it came into Olsen’s possession accidentally.

When he was questioned about what that meant, he said that it was attached mistakenly to other material that the Court had distributed to Olson. So in the course of modern history, that is the only time I’m aware of that an opinion of any kind reached a member of the media. But even that one is distinguishable from what happened here because here we have what appears to be a full draft majority opinion.

So, the size and scope of this leak are unprecedented.

In the modern history of the Court, that would be right. You might have to do a little bit more head-scratching if you went back to the 19th century. In the 19th century, the justices were really interested in what the press said about them and a number of them were actually big news clippers themselves. They engaged with reporters about their work. They were more frequently quoted and would try to get sound bites placed in various news publications to reflect their political interest. They were actively trying to shape the news. And written opinions were occasionally used as a vehicle for justices to try to shape news coverage and public opinion.

I can give you one example of this, but the first thing you have to note is the way that the Court releases opinions today: Opinions delivered at the Court today are released to the public at the same time as they’re announced orally in the Court. But in 1857, opinions were read from the bench, but they were not printed and released until later. And so in the Dred Scott case [which, prior to the Civil War, denied citizenship rights to current and former slaves], there were two dissenters, one of them [Associate Justice] John McLean, the other [Associate Justice] Benjamin Curtis. They released their dissenting opinions to the press before the Court released its majority opinion, and the majority was written by Chief Justice Roger Taney. Then in response to public reaction to those dissenting opinions, the Chief Justice revised his own majority opinion before it was printed and released to the Court.

So you’ve got to go back either to 1981, with a distinguishable case involving what seemed to be a partial draft of a dissenting opinion, or back to the mid-1800s  to find something of an analogy, but even here the analogies are not perfect. To the extent we’re talking about the release of the full draft of a majority opinion, I can’t find another one-to-one match for it.

Why do you think the Supreme Court has a history, at least in the modern era, of being airtight?

Leaks in most institutions and agencies of government are seen as regrettable but inescapable, but while the US Supreme Court has not been leakproof it’s been less leaky than other government institutions. I think one reason for that could be that the Court as a whole and individual justices have long enforced established rules regarding duties of confidentiality.

There is a code of conduct that applies to law clerks [Supreme Court justices’ staffers] that admonishes them that they are in positions of public trust, that they owe confidentiality and loyalty not only to the Court as an institution but also to the individual justices for which they work. The law clerks, especially, have a very high personal incentive to keep quiet and they have a lot to lose if they speak out. That could mean the immediate end of their otherwise promising legal careers.

The justices themselves have long been gun shy about leaking to the press because of concerns about institutional legitimacy and public opinion about the Court. The justices on the one hand might argue that public opinion about the Court doesn’t much matter in the sense that, at least in theory, the judiciary is not supposed to be responsive to public opinion. But on the other hand, any political scientist who’s ever studied these issues knows that there is a direct relationship between public opinion and the Court’s legitimacy and, by extension, the rule of law. So any member of the Court has to be at least somewhat concerned with that, particularly the chief justice. All of which is to say there are professional and personal interests at stake here that have caused the Court to be, if not a perfect keeper of secrets, a better one than its counterparts in the executive and legislative branches.

Do you think the leak will affect the outcome of the case itself?

It’s not impossible. If we operate in a vacuum of theory, it shouldn’t. The justices should be immune from this sort of public reaction or public opinion. But they’re not. They’re political actors. And it is possible that it could affect the outcome of the case. I feel like the Dred Scott opinion is an example of that, where the chief justice revised part of his own opinion in response to the public reaction to the preemptively released dissenting opinions. It’s impossible to say right now where exactly this leak came from. I’ve seen theories all over the spectrum that it was a progressive justice trying to galvanize public opposition to the overruling, or that it was a conservative justice trying to make it more difficult for one of the conservatives who initially voted in favor of overruling Roe to walk away from that. Now that the opinion has been released, we’ve got a tentative vote count—who is on board and who’s not—based on not only the opinion itself but also the other comments that were reported by [Politico reporters Josh Gerstein and Alexander Ward] ] about the chief justice’s vote and position in this case. It could compel one of the justices in the majority if they’ve got one who’s squeamish, who would otherwise be thinking about jumping ship, maybe that would affect that person’s decision. I just don’t know. It’s so speculative to say.

What do you think this leak does to the ethos of secrecy around the Court? Will it change anything?

I don’t know, in part because there is this history of leaks. Yes, this is unprecedented—the release of an actual majority draft opinion. But even under Chief Justice [John] Roberts, back in 2012, you had CBS’s Jan Crawford reveal that Roberts himself had changed his mind in the Obamacare decision and decided to join the liberal bloc to uphold the legislation. And it was remarkable because it not only provided details about the chief’s decision to change his vote but also the internal lobbying that took place among conservative justices, namely Justice [Anthony] Kennedy, to try to win back the chief’s vote. Even under Roberts, we’ve had some truly astounding breaches of the inner sanctum of the Court. And I don’t really know internally what, if anything, has changed in the Court’s deliberative processes or in the paper flow [of draft opinions] among the chambers. I would imagine the Court would never tell you that. I think that itself would have to be a leak.

So we’ll have to wait for the next leak to find out what happened in response to this leak.

We very well might.

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