SCOTUS leak shocks experts but it’s far from the first


WASHINGTON (NewsNation) — An unprecedented leak from the Supreme Court is sending shockwaves across the country. A draft opinion from the nation’s highest court leaked Monday suggesting the Supreme Court is set to overturn the landmark Roe v. Wade case that legalized abortion nationwide.

Chief Justice John Roberts confirmed the authenticity of a leaked draft opinion Tuesday morning. A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year’s elections. But it’s unclear if the draft represents the court’s final word on the matter — opinions often change in ways big and small in the drafting process. Lawyers and others who watch the court closely were shocked by the leak.

“This is huge. As you know, there have been leaks in the past like of a decision the court’s going to make, in fact, the original Roe decision back in ’73, the decision itself got leaked,” Paul Lesnik said on “Morning in America.” “But what’s never happened to anybody’s knowledge and history is the leaking of an opinion, the actual 90-plus page written opinion.”

Unlike the White House and Congress, where leaks are a regular fact of life and a tool of political operatives trying to advance their agendas, the Supreme Court typically keeps its internal deliberations private.

There have been leaks before, though not of the apparent magnitude of the document posted by Politico. In 1973, for example, Time magazine’s David Beckwith reported on the outcome of Roe v. Wade before the decision was published. But because the magazine was a weekly, Beckwith’s scoop arrived just hours before the decision was made public.

Neal Katyal, who has argued dozens of cases before the court and as a young lawyer worked for Justice Stephen Breyer, compared the apparent leak to The New York Times’ 1971 publication of the government’s secret history of the Vietnam War, known as the Pentagon Papers.

“This is the equivalent of the Pentagon Papers leak, but at the Supreme Court. I’m pretty sure there has never ever been such a leak. And certainly not in the years I’ve been following the Supreme Court,” Katyal wrote on Twitter.

The widely followed SCOTUSblog wrote on its Twitter account: “It’s impossible to overstate the earthquake this will cause inside the court, in terms of the destruction of trust among the justices and staff.”

It was similarly unclear who might have leaked the draft to Politico or what their motivations might be. The news outlet said only that it had “received a copy of the draft opinion from a person familiar with the court’s proceedings … along with other details supporting the authenticity of the document.”

University of Georgia professor Jonathan Peters, who has written about leaks at the court, has noted that Roe isn’t the only high-profile case where there’s been a leak. The New York Tribune, for example, published a “running account of the court’s deliberations in Dred Scott,” the infamous 1857 decision that declared African Americans couldn’t be citizens.

“Supreme Court leaks are rare, but they are hardly unprecedented,” Peters wrote in 2012. “The court, just like our other public institutions, is made up of political animals. We shouldn’t be shocked when they act that way.”

While a number of commentators said the person who leaked the draft is probably seeking to whip up public fervor to change the justices’ minds or get progressive voters to the polls for the Nov. 8 congressional midterm elections, others disagreed, asserting the leaker might be someone – a clerk or even a justice – who sympathizes with the majority.

The Associated Press and Reuters contributed to this report.

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