SCOTUS has a limited history with leaks of opinions

The Supreme Court building
Posted at 10:59 AM, May 03, 2022
and last updated 2022-05-03 17:53:37-04

WASHINGTON, DC — The Supreme Court of the United States awoke to an unprecedented time in its more than 200-year history. A leak of a full draft decision to Politico pulled the curtain back on what the court could be preparing to do in a decision later this year.

While the leak of an entire draft decision is unprecedented, decisions and other deliberations have been leaked to the press throughout the court's history.

According to the Washington Post, in 1973, Supreme Court clerk Larry Hammond leaked the initial Roe v Wade decision to a Time magazine reporter. However, because Time magazine was a weekly publication, the leaked decision "appeared on newsstands just hours before the decision was announced by Justice Harry Blackmun."

At the time, Chief Justice Warren Burger was angry about the leak and sought to find the leaker. Hammond confessed to Justice Powell, his boss, and eventually Chief Justice Burger, the Post reported. No formal punishment was handed down for Hammond.

Coincidentally, also in the Roe case, Justice William Douglas wrote a memo about the case that was also leaked to the Washington Post, according to University of Georgia media law professor Jonathan Peters. It revealed the deliberations that were ongoing about the eventual Roe v Wade decision.

In the late 1970's, the Court also fought with finding a leaker after ABC correspondent Tim O'Brien reported multiple decisions ahead of time. The leaker was never revealed, but the Associated Press said Chief Justice Burger suspected it was someone in the court's print shop.

Decades before Roe, one of the most infamous cases of leaks at the Supreme Court happened with Supreme Court clerk Ashton Embry. The young clerk worked for then-Justice Joseph McKenna until unexpectedly offering his resignation in late 1919.

On the day of the resignation, the New York papers reported that someone had leaked the decisions on a Supreme Court case to Wall Street speculators to short the stock on the losing side. Embry was later revealed to be the source of the leak.

However, Embry never faced charges over the leaks after a J. Edgar Hoover-led investigation called into question the tipster who started the investigation, according to the California Appellate Law Group.

Still, even with that brief history, the leaking of an entire draft decision has never happened in modern court history. While much of the discussion has been about the looming decision and its impact on society, the impact of the leak is not being overlooked by court observers.

Former United States Solicitor General Neal Katyal compared the SCOTUS leak to the leaking of confidential information.

Chief Justice John Roberts announced Tuesday morning an investigation into the leak has been started.