May 4, 2022 10:43 AM

The Roe v. Wade Opinion Is Not the First Supreme Court Leak

US precedents include the famous Dred Scott slavery case. But leaks never bode well for the court-journalist relationship.

I once wrote a law review article about scandals at the United States Supreme Court. I sent a copy of it to a Supreme Court justice. That justice was Samuel Alito.

I’d told Justice Alito about “Scandal! Early Supreme Court News Coverage and the Justice-Journalist Divide” at a work dinner years ago, and he’d appeared interested, so I sent a copy to his chambers at the Court. The article focuses on the decidedly prickly relationship—especially in the 1800s—between Supreme Court justices and the journalists who covered them.

Journalists once fawned over the justices, writing that the men in their stunningly impressive robes of justice had “elegance, gravity, and neatness” and not daring to question such majesty or investigate further. And then, rather suddenly, the coverage shifted tone: One key justice should comb his “uncomfortable wad of tangled black hair,” another had a “woman’s mouth,” and so on.

Today’s justices who don’t want cameras in the courtroom? Back in the 1800s, the justices didn’t allow sketches or any kind of notetaking. Justices who complain today about the media and argue that laws must be changed to reign in the press? When a newspaper zeroed in on one justice's bad eyesight and childless marriage in the 1800s, he decried journalists for invading privacy, unearthing domestic scandals, and hiding themselves “upon the steps of public men to ferret out political secrets.”

Political secrets like the pending outcomes in cases before the Court. The leaked draft opinion showing that the conservative justices wanted to overturn Roe v. Wade? That’s just the latest example.

People have claimed that this week’s leak of Dobbs v. Jackson Women’s Health Organization is “unprecedented,” but that’s not the case. Take the dreadful Dred Scott decision that in the mid-1800s upheld slavery, one of the very first leaks, if not the first. Three months ahead of the final opinion, newspapers began reporting the vote, a 7-2 split against Dred Scott, the once-enslaved man who’d made his way to a free state to argue for his and his family’s freedom. “Slavery,” one of those newspapers predicted with confidence and concern in the weeks before the final decision, “will thus become a national institution,” enforced by the Court’s “slaveholding majority,” those justices who were “infamous, rank, and smell[ed] to heaven.”

That reporting was spot-on in many ways. And much like today, the newspapers warned back then that the decision against Dred Scott would do “much to divest [the Court] of moral influence, and to impair the confidence of the country” in the Court as an institution. The decision, as that 2014 law review article I sent to Justice Alito reads, was one “that many disrespected, written by a Justice who had already turned the newspapers against him, leaked to media by someone at the Court before the official hand-down.”

Something else might sound familiar. Back then, the Court similarly launched investigations after leaks. Bold theories emerged in the 1800s about the culprit in various instances: an insider who’d been plied with liquor, another who’d been plied with cash, members of a Wall Street clique friendly with certain justices, a Supreme Court employee, a justice himself.

We may never find out who sent Alito’s draft majority opinion to outsiders. Back then, it’s pretty clear by implication that Justice Stephen Field himself was responsible in a number of cases. This is some of what the New York Times wrote: “[U]ntil lately … we had supposed that the Justices were themselves free of a tendency to blab. We evidently overlooked Mr. Justice Field.” “He likes to talk,” the newspaper added, “and when the fountains of speech are unlocked by the generous influences of a good dinner he is as fluent as a river.”

It turns out that leaks at the Court—those involving high-profile decisions especially, including advance sheets leaked in an income tax case and advance word of the outcome in an important railroad case—may have accelerated the shift from compliments to criticism. Nearly everyone in the United States cared about those decisions, much like today, when a single Supreme Court opinion can instantly change the law of the entire country. And so, at those times in particular, the Court became like a sieve, facilitated, the justices would complain, by journalists eager for a scoop. Such leaks were “frequent” and a “serious scandal.” And perhaps because the leaks and their contents made the justices seem much more like ordinary men who made mistakes with significant implications for the rest of us, journalists felt increasingly emboldened to criticize.

Surely, no justice today would release such a draft opinion to the media. This might sound naive, but my sense is that every single justice respects the Court as an institution too much to release a secret opinion in advance, no matter how strongly they feel about a particular issue, including abortion rights. When my husband clerked at the Court in the 1990s, Chief Justice William Rehnquist warned everyone that secrecy was paramount, that keeping information within the chambers of the justices themselves was essential to upholding the integrity of the Court.

I have no idea if Court employees are warned in the same way today, but I imagine they are; the Court learned much from the leaks in the 1800s. It will learn from this modern leak too and could well restrict access to draft opinions even more strictly or exhort everyone at the Court to remember that their duty is to the institution above all else. Even as news of the leaked opinion broke, Chief Justice John Roberts reminded all, including those on the inside, that the Court was “blessed to have a workforce—permanent employees and law clerks alike—intensely loyal to the institution and dedicated to the rule of law.” My guess is that he said this even more pointedly to those on the inside and will repeat it in the coming days, weeks, months, and years.

I have no idea if Justice Alito ever read my article about the history of leaks at the Court. But if he did, he also read that “such a prickly history between the Justices and the journalists suggest[s] that a greater openness at the Court is unlikely anytime soon.” A closed-up Court with justices who wanted privacy and secrecy and expected everyone to comply with that was the norm and had been for a while, ever since the leaky 1800s. No justices wanted journalists delving into their personal lives or pending opinions, as newsworthy as many would surely find those topics.

After the events of this week, that’s now doubly true.