List of United States Supreme Court leaks

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Politico publishing a draft majority opinion in Dobbs v. Jackson Women's Health Organization in May 2022 is considered to be the most significant leak of the Supreme Court's private deliberation.[1]

The United States Supreme Court typically keeps all deliberations and draft opinions private while a case is pending. At the start of the publication process, the court releases a single slip opinion for the case. However, some instances of news leaks of private deliberations or draft opinions have occurred.

19th century[edit]

In 1852, ten days before the justices announced their ruling, the New-York Tribune published the decision in Pennsylvania v. Wheeling and Belmont Bridge Company. When the case returned to the Court two years later, the Tribune published the ruling ahead of time again.[1][2]

In February 1857, Associate Justice John Catron informed President-elect James Buchanan that the Supreme Court would write in Dred Scott v. Sanford that Congress had no power to regulate slavery in federal territories.[3] Catron wanted Justice Robert Cooper Grier, a Pennsylvanian, to join the majority in Dred Scott so there would be at least one Northerner, who would be in favor of the majority's decision. Buchanan wrote to Grier asking him to join the Court's majority, which Grier did. At his inauguration, Buchanan referred to the Dred Scott decision and said the issue of slavery would soon be "speedily and finally" settled by the Supreme Court. The Tribune also published a running account of deliberations in the case, with Justice John McLean suspected of being the leaker.[1][4]

20th century[edit]

The Department of Justice indicted Ashton Embry, a former clerk of Justice Joseph McKenna, in 1919 for leaking pending decisions to Wall Street traders, including a railroad patent case. Embry had resigned a few months earlier to become a baker.[5] No insider trading laws existed then, so Embry was charged with depriving "the United States of its lawful right and duty of promulgating information in the way and at the time required by law and at departmental regulation."[5] The case never went to trial after the government's chief witness was "accused of conspiring with the Germans during World War I."[5][6] Ninth Circuit Judge John B. Owens told Politico in 2022 that Embry is the only known case where "someone financially benefitted from disclosing inside information at the Supreme Court".[7]

In 1977, NPR's Nina Totenberg reported that by a 5–3 vote, the Court declined to review cases of three defendants in Watergate cases.[8][9]

Two years later, Warren Burger reassigned a member of the Court's print staff after determining they leaked the results of multiple cases to Tim O’Brien, an ABC News correspondent.[9][10] In 1986, O'Brien correctly reported the 7-2 vote in Bowsher v. Synar, but got the specific day the Court was expected to announce its ruling wrong, as Burger delayed the announcement, likely because of the leak.[9][11]

In 1981, United Press International received a draft of an opinion for County of Washington v. Gunther, but withheld publication because it was "unable to establish the authenticity."[12]

Roe v. Wade[edit]

While Roe v. Wade was being deliberated, The Washington Post published an article on July 4, 1972, covering infighting by the justices, including an internal memo written by Justice William O. Douglas.[13][14]

Once a decision was finalized, Larry Hammond, a clerk for Justice Lewis Powell, leaked it to Time, on the condition it would not be published until the ruling was public. The announcement was delayed, but Time was already scheduled to publish and hit newsstands anyways.[13][15] Chief Justice Warren E. Burger was "livid", and asked the other justices to identify the leaker so they could be punished.[16] Hammond confessed to Powell, offering to resign, but Powell rejected that offer, telling Burger that Hammond was double-crossed. Burger met with Hammond and forgave him, and would also meet with editors from Time.[16][17]

The reporter who broke the story, David C. Beckwith, said in 2022 that he spoke with about 15 people for the story, including Hammond.[17]

21st century[edit]

Multiple former law clerks leaked details about the 2000 Bush v. Gore decision to Vanity Fair in 2004.[18]

In 2012, days after the ruling in National Federation of Independent Business v. Sebelius was announced, CBS News's Jan Crawford reported that Chief Justice John Roberts had switched his vote, from initially wanting to strike down the law in question, to eventually voting to uphold it.[19][20]

In 2019, CNN reported on Roberts switching his vote in another high profile case, Department of Commerce v. New York, which considered whether a question about citizenship status could be added to the 2020 United States census.[21][22]

In 2022, during oral arguments in Arizona v. City and County of San Francisco, California, Justice Stephen Breyer commented that a claim was "pretty similar to what we just allowed in that case of the attorney general", inadvertently revealing the Court's decision in Cameron v. EMW Women's Surgical Center, P.S.C., eight days before it would be published.[7][23]

Dobbs draft opinion[edit]

On May 2, 2022, Politico released a leaked 98-page draft opinion authored by Associate Justice Samuel Alito in a highly watched abortion case, Dobbs v. Jackson Women's Health Organization, which had five votes to overturn Roe v. Wade.[1][24] The draft was from February, but Politico—and later, The Washington Postreported that the five-vote majority was still intact.[24][25] The authenticity of the draft was confirmed by Chief Justice John Roberts, who also directed the Marshal of the Court to conduct an investigation into the source of the leak.[26][27] It is unlikely that the leak violated any federal criminal laws, unless the draft was obtained by hacking, theft, or other unlawful means.[28][29][30][31]

See also[edit]

References[edit]

  1. ^ a b c d "Abortion opinion leak unprecedented but not a Supreme Court first". NBC News. Retrieved May 5, 2022.
  2. ^ Jonathan Peters [@jonathanwpeters] (May 2, 2022). "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" (Tweet) – via Twitter.
  3. ^ Slavery, Law and Politics: The Dred Scott Case in Historical Perspective by Don E. Fehrenbacher (1981) ISBN 0-19-502883-X, pp. 164-168
  4. ^ Walsh, Mark (May 5, 2022). "Rare but not unprecedented Supreme Court leak considered 'staggering'". ABA Journal. Retrieved May 13, 2022.
  5. ^ a b c Chukwuogo, Chinwe (July 20, 2016). "The Clerk, The Thief, His Life As A Baker: Visiting Judge Tells Story of 1919 Supreme Court Leak | University of Chicago Law School". University of Chicago Law School. Retrieved May 5, 2022.
  6. ^ Owens, John B. (Fall 2000). "The clerk, the thief, his life as a baker: Ashton Embry and the Supreme Court Leak scandal of 1919". Northwestern University Law Review. 95 (1): 271–308. doi:10.1111/1540-5818.00033. S2CID 144849285.
  7. ^ a b Gerstein, Josh (May 2, 2022). "How rare is a Supreme Court breach? Very rare". POLITICO. Retrieved May 5, 2022.
  8. ^ Gault, Matthew (May 3, 2022). "The Supreme Court Leaks All the Time". Motherboard. Retrieved May 5, 2022.
  9. ^ a b c Peters, Jonathan (July 6, 2012). "The Supreme Court Has Always Leaked". Slate Magazine. Retrieved May 5, 2022.
  10. ^ Gresko, Jessica (May 3, 2022). "Court that rarely leaks does so now in biggest case in years". AP News. Retrieved May 5, 2022.
  11. ^ Reske, Henry J. (June 16, 1986). "The Supreme Court fueled speculation Monday it has reached..." UPI. Retrieved May 5, 2022.
  12. ^ "UPI Withholds Story on Opinion By Supreme Court". The Washington Post. June 7, 1981. Retrieved May 5, 2022.
  13. ^ a b Gault, Matthew (May 3, 2022). "The Supreme Court Leaks All the Time". Motherboard. Retrieved May 5, 2022.
  14. ^ "Move by Burger May Shift Court's Stand on Abortion". The Washington Post. July 4, 1972. Retrieved May 4, 2022.
  15. ^ Treisman, Rachel (May 3, 2022). "The original Roe v. Wade ruling was leaked, too". NPR. Retrieved May 5, 2022.
  16. ^ a b Robenalt, James D. (May 2, 2022). "The 1973 Roe v. Wade decision also was leaked to the press". The Washington Post. ISSN 0190-8286. Retrieved May 16, 2022.
  17. ^ a b Waxman, Olivia B. (May 4, 2022). "Inside the Original Roe v. Wade Supreme Court Leak From 1973". Time. Retrieved May 5, 2022.
  18. ^ Shafer, Jack (May 3, 2022). "Opinion | It's About Time Someone Punctured the Supreme Court's Veil of Secrecy". POLITICO. Retrieved May 5, 2022.
  19. ^ Byers, Dylan (July 3, 2012). "Who leaked the Supreme Court story?". POLITICO. Retrieved May 5, 2022.
  20. ^ Crawford, Jan (July 2, 2012). "Roberts switched views to uphold health care law". CBS News. Retrieved May 5, 2022.
  21. ^ Blackman, Josh (September 12, 2019). "Why did "sources familiar with the private Supreme Court deliberations" talk to CNN about the Census Case?". Reason.com. Retrieved May 5, 2022.
  22. ^ Biskupic, Joan (September 12, 2019). "Exclusive: How John Roberts killed the census citizenship question". CNN. Retrieved May 5, 2022.
  23. ^ Steve Vladeck [@steve_vladeck] (February 23, 2022). "With a big H/T to @Arianedevogue (who caught it before I did), it sure looks like Justice Breyer accidentally gave away the result in the Cameron case (which the Court has *not* yet decided) during today's Arizona v. City of San Francisco oral argument: www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-1775_2c8f.pdf" (Tweet). Retrieved May 6, 2022 – via Twitter.
  24. ^ a b Gerstein, Josh; Ward, Alexander (May 2, 2022). "Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows". POLITICO. Retrieved May 9, 2022.
  25. ^ Barnes, Robert; Leonnig, Carol D.; Marimow, Ann E. (May 7, 2022). "How the future of Roe is testing Roberts's clout on Supreme Court". The Washington Post. Retrieved May 9, 2022.
  26. ^ Breuninger, Kevin (May 3, 2022). "Supreme Court says leaked abortion draft is authentic; Roberts orders investigation into leak". CNBC. Retrieved May 5, 2022.
  27. ^ "Press Release 05-03-22" (Press release). Supreme Court of the United States. May 3, 2022. Retrieved May 4, 2022.
  28. ^ Kevin Johnson, Bart Jansen & Kevin McCoy (May 3, 2022). "The leak of a draft Supreme Court opinion overturning Roe v. Wade not illegal, experts say". USA Today. The blockbuster leak of a draft Supreme Court opinion in a high-profile abortion case is probably not illegal, according to legal experts.
  29. ^ Matt Zapotosky, Justice Dept. not likely to charge in Supreme Court abortion leak, Washington Post (May 3, 2022).
  30. ^ Greenberg, Andy. "Is Leaking a Supreme Court Opinion a Crime? The Law Is Far From Clear". Wired. ISSN 1059-1028. Retrieved May 3, 2022.
  31. ^ Scarcella, Mike; Sloan, Karen; Thomsen, Jacqueline (May 4, 2022). "Explainer: Is it illegal to leak a U.S. Supreme Court opinion?". Reuters. Retrieved May 4, 2022.