What Kind of Person Would Leak a Supreme Court Ruling?

The Supreme Court leak is a freakish occurrence in the ”island of confidentiality” but it’s happened before, and on the very same issue

When it comes to leaks, do not confuse the Supreme Court with the White House, which leaks early and often. The Supreme Court is a tightly-sealed operation where leaks are rare. Former clerk Stephen L. Carter wrote in the Chicago Tribune in 2017 that the court has been America’s “last leak-proof institution.”

Not quite.

Supreme Court Chief Justice John Roberts confirmed on Tuesday the authenticity of a leaked draft opinion by Justice Samuel Alito that would effectively strike down the 1973’s Roe v. Wade, and called for an investigation into the matter. The court had planned to publish its official ruling toward the end of the term in June, according to CNBC.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Chief Justice Roberts said in a statement. “The work of the Court will not be affected in any way.” He went on to write that the leaked draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.”

Jonathan Turley, a George Washington University law professor who teaches a course on the Supreme Court, told MSN the leak was “greatest security breach in the history of the court.” It was also breach in conduct that was out of step with the entire gestalt of the Supreme Court, he said, a place that has always been “an island of confidentiality… a very insulated, monastic and personal environment.”

New court employees get ethics training when they are hired, Sheldon Snook, a former senior official at the Supreme Court, told MSN. Snook said that confidentiality is an important part of the culture for all court employees.

Who is the leaker? It could only have been one or more of a limited circle of people. Drafts like Alito’s opinion only are disseminated to a small number of people, Turkey said.

Broadly speaking, people who would have access to these documents are clerks and possibly other court employees. These are people who are “intensely loyal to the institution and dedicated to the rule of law,” Roberts said in his statement. But clearly, at least one wasn’t.

There was a minor leak from the Supreme Court in 2012 that resulted in a CBS News story that Roberts had changed his vote on his decision to uphold the Affordable Care Act. And in 1986, an actual decision was leaked ahead of time, when ABC News got hold of the outcome as well as the individual votes in Bowsher v. Sonar, the decision abating the Gramm-Rudman-Hollings Balanced Budget Act, according to the Tribune piece.

However,  the last major Supreme Court leak concerned this very same case, in 1973, when the result of the original Roe v. Wade was leaked by a law clerk to Time magazine, according to the Washington Post. The issue of Time containing the decision hit the newsstands hours before it was announced by the court. The clerk confessed and offered to resign his position with Justice Lewis Powell after Chief Justice Burger called for a manhunt and for the leaker to be named and shamed. However, Chief Justice Burger showed him mercy, and he not only kept his job, but went on to work for Justice Powell for another term.

The original Roe v. Wade leaker, named Larry Hammond, later told the Washington Post‘s James D. Robenalt that he didn’t leak out of political motivations or malice—it was more of a case of “loose lips sink ships.” He apparently spoke to an acquaintance from law school about the upcoming ruling—an acquaintance who happened to be a staff reporter at Time. Although Hammond only gave him the information on background, and it was understood that Robenalt would only write about the opinion once it was official, a delay in the ruling resulted in the information appearing on the newsstands hours before it was announced.

As for this case, theories abound as to why anyone would leak the document. SCOTUSBlog author and University of Texas School of Law professor Steve Vladeck shared his thoughts on the matter early Tuesday morning.

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