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Leaks at the Supreme Court are rare, but nothing new

Updated: Mar 3, 2023

While they are infrequent and can disrupt the Court’s proceedings, instances where deliberations have been made public before a decision have happened before - and likely will again

With the recent Supreme Court leak, the question arises: How did this happen? Has it happened before? While not many of us may remember prior Supreme Court leaks - because they are, indeed, rare – they do happen from time to time. While some have described the leak as “unprecedented” (perhaps all too ironic in an instance where the Court may overturn its own precedent), this week’s events are not utterly unique. In 1852, for example, the New York Tribune reported on the ruling in Pennsylvania v. Wheeling and Belmont Bridge Company, ten days before the ruling was issued. This case later returned to the Court, only for the Tribune to, yet again, publish the results of the case before the decision was official. Arguably the most famous Supreme Court leak, however, is related to the decision of Dred Scott v. Sandford, and may have played a significant role in pushing the United States toward the Civil War. Then-President James Buchanan wrote a letter to Justice Robert Cooper Grier, canvassing support for a ruling that would invalidate the Missouri Compromise – a ruling that the Court ultimately furnished. The New York Tribune, again, was privy to the deliberations, and it published a running account of them. Historians believe that the leak came from one of the other justices, John McLean (one of the two dissenting votes in Dred Scott). Chief Justice Roger B. Taney was reportedly furious that the decision was leaked before the ruling’s official publication. Justice Benjamin Curtis (the other dissenting vote, and the first Supreme Court justice to have a formal legal degree) also provided a copy of his dissent before it was published, and subsequently resigned from the Court, at least in part due to his disgust at the partisan atmosphere the Dred Scott decision engendered. The decision of Roe v. Wade itself also had its fair share of leaks, with the Washington Post publishing stories about Justice William Douglas’s memo and the Court’s deliberations. Time Magazine even had word of the ultimate decision a few hours before it was officially released. Chief Justice Warren Burger was so angered by these leaks that he launched an investigation to uncover the source and threatened that all of the Court’s clerks would have to undergo a lie detector test if the leak was not found. (He allegedly also instituted the Court’s “twenty second policy,” under which any clerk caught talking to the press will be fired – within twenty seconds.) Burger also personally appeared at Time’s offices to upbraid them for publishing the story. What happened to people who have leaked this crucial information? Despite the outcry that generally accompanies a leak, in practical terms very little has happened. The Roe leak was ultimately found to have originated with one of the law clerks, but, despite his apology and offer of resignation, he was kept on. In 1919, another law clerk was accused of leaking decisions to Wall Street brokers for the purpose of insider trading and was charged with conspiracy, but the charges were eventually dismissed without trial (in part because there were as yet no laws specifically against insider trading). Thus, while it seems that the ire of the Chief Justice is to be expected, if history is any guide, the source of the leak is unlikely to face serious legal repercussions. The massive uproar regarding the recent leak is a bit disingenuous given that the Court had a leak mere months ago – a leak that was practically ignored by the media and certainly did not inspire the public outcry we have seen this week. Justice Breyer, during oral argument in an unrelated case, appeared to disclose the Court’s ruling in Cameron v. EMW Women’s Surgical Center, which was still pending at the time. Perhaps because the issues in Cameron were of less general interest to the public, hardly an eye was batted (which may serve as evidence that the issue of abortion is at heart a political, and not a judicial, one – in which case it is hard to avoid the conclusion that the Supreme Court is not the proper forum to hammer out federal abortion policy). In the end, there is no new thing under the sun – a leak at the Supreme Court is rare and noteworthy, true, but hardly unheard of.

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