WASHINGTON ( Associated Press) — The Supreme Court keeps secrets. Year after year, in big case after big case, there’s little to say during oral arguments that judges say about how they’ll rule until they actually do.
Apparently, as of Monday evening when Politico published what he said is an opinion draft. A major issue of abortion that was debated. Although, on rare occasions, cases have leaked of results, the publication of a clear draft consisting of nearly 100 pages was without a clear modern parallel.
The draft states that much of the court’s landmark 1973 decision, Roe v. Wade, which legalized abortion nationwide. A decision in the case was expected before the court began its summer vacation in late June or early July, so it could take more than a month for the court to actually issue a final opinion. If the court does what is suggested in the draft, the verdict will uphold the nearly 50-year-old judgment; Its advance publication would also disturb the almost unbroken tradition of secrecy in court.
The document posted by Politico, which The Associated Press could not independently verify but which some court observers said appeared to be valid, says the court’s opinion has been given by Justice Samuel Alito. It also says that the draft was distributed to other members of the court in February. Alito is a member of the court’s six-judge conservative majority.
The lawyers and others watching the court closely were astonished. Neil Katyal, who has argued dozens of cases before the court and worked for Justice Stephen Breyer as a young lawyer, compared the apparent leaks to The New York Times’ publication of the government’s secret history of the 1971 Vietnam War. Key, known as the Pentagon Papers. ,
“This is equivalent to the Pentagon paper leak, but in the Supreme Court. I’m pretty sure such a leak would never have happened. And certainly not in the years I have been following the Supreme Court,” Katyal wrote on Twitter.
One reason the Supreme Court has historically been so leak-proof is that only a handful of people have access to decisions before they are published. This includes the judges themselves and the small group of people who work for them. Clerks of judges, young attorneys who work for judges for a year and who will be among those who can see draft opinions, sign pledges of confidentiality.
Nevertheless, there have been leaks before, though not of the apparent magnitude of the document posted by Politico. In 1973, for example, David Beckwith of Time magazine reported on the outcome of Rowe v. Wade before the decision was published. But since the magazine was a weekly, Beckwith’s scoop decision came hours before it became public.
And in the late 1970s, ABC’s Tim O’Brien had a half-dozen scoop on decisions. According to a book by former court public information officer Barrett McGurn, the report both baffled and upset the judges. It was unclear where O’Brien was getting his information, although then-Chief Justice Warren Burger suspected someone in the court’s print shop might have had access to the decisions.
It was equally unclear who might have leaked the clear draft to Politico or what their motives might have been. The news outlet said only that it had “received a copy of the draft opinion from a person familiar with the court proceedings … along with other details supporting the document’s authenticity.”
University of Georgia professor Jonathan Peters, who has written about the leak in court, noted that Roe isn’t the only high-profile case where a leak has occurred. For example, the New York Tribune published an “ongoing account of court deliberations in Dred Scott,” the infamous 1857 decision that declared African Americans not citizens.
“Supreme Court leaks are rare, but they are hardly unprecedented,” Peters wrote in 2012., “The court, like our other public institutions, is made up of political animals. We shouldn’t be shocked when they behave this way.”