The United States Supreme Court typically keeps all deliberations and draft opinions private while a case is pending. At the start of the publication process, the court releases a single slip opinion for the case. However, some instances of news leaks of private deliberations or draft opinions have occurred.
In 1852, ten days before the justices announced their ruling, the New-York Tribune published the decision in Pennsylvania v. Wheeling and Belmont Bridge Company . When the case returned to the Court two years later, the Tribune published the ruling ahead of time again. [1] [2]
In February 1857, Associate Justice John Catron informed President-elect James Buchanan that the Supreme Court would write in Dred Scott v. Sandford that Congress had no power to regulate slavery in federal territories. [3] Catron wanted Justice Robert Cooper Grier, a Pennsylvanian, to join the majority in Dred Scott so there would be at least one Northerner, who would be in favor of the majority's decision. Buchanan wrote to Grier asking him to join the Court's majority, which Grier did. At his inauguration, Buchanan referred to the Dred Scott decision and said the issue of slavery would soon be "speedily and finally" settled by the Supreme Court. The Tribune also published a running account of deliberations in the case, with Justice John McLean suspected of being the leaker. [1] [4]
The Department of Justice indicted Ashton Embry, a former clerk of Justice Joseph McKenna, in 1919 for leaking pending decisions to Wall Street traders, including a railroad patent case. Embry had resigned a few months earlier to become a baker. [5] No insider trading laws existed then, so Embry was charged with depriving "the United States of its lawful right and duty of promulgating information in the way and at the time required by law and at departmental regulation." [5] The case never went to trial after the government's chief witness was "accused of conspiring with the Germans during World War I." [5] [6] Ninth Circuit Judge John B. Owens told Politico in 2022 that Embry is the only known case where "someone financially benefitted from disclosing inside information at the Supreme Court". [7]
While Roe v. Wade was being deliberated, The Washington Post published an article on July 4, 1972, covering infighting by the justices, including an internal memo written by Justice William O. Douglas. [8] [9]
Once a decision was finalized, Larry Hammond, a clerk for Justice Lewis Powell, leaked it to Time , on the condition it would not be published until the ruling was public. The announcement was delayed, but Time was already scheduled to publish and hit newsstands anyways. [8] [10] Chief Justice Warren E. Burger was "livid", and asked the other justices to identify the leaker so they could be punished. [11] Hammond confessed to Powell, offering to resign, but Powell rejected that offer, telling Burger that Hammond was double-crossed. Burger met with Hammond and forgave him, and would also meet with editors from Time. [11] [12]
The reporter who broke the story, David C. Beckwith, said in 2022 that he spoke with about 15 people for the story, including Hammond. [12]
In 1977, NPR's Nina Totenberg reported that by a 5–3 vote, the Court declined to review cases of three defendants in Watergate cases. [8] [13]
Two years later, Chief Justice Warren Burger reassigned a member of the Court's print staff after determining they leaked the results of multiple cases to Tim O’Brien, an ABC News correspondent. [13] [14] In 1986, O'Brien correctly reported the 7–2 vote in Bowsher v. Synar , but got the specific day the Court was expected to announce its ruling wrong, as Burger delayed the announcement, likely because of the leak. [13] [15]
In 1981, United Press International received a draft of an opinion for County of Washington v. Gunther , but withheld publication because it was "unable to establish the authenticity." [16]
In June 1992, an issue of the newsmagazine Newsweek contained an account of the Court's deliberations in Planned Parenthood v. Casey , a case involving abortion. The article cited various unnamed sources, including clerks, and correctly predicted that "at least three of the nine justices are planning to draft opinions in Casey" and that the decision would be issued on June 29. [17] In a June 10, 1992 memorandum to all law clerks, Chief Justice William H. Rehnquist admonished clerks to say nothing to the press about pending cases. [17] The Rehnquist memo about the apparent leak became public in 2023, when the private papers of John Paul Stevens (who retired in 2010 and died in 2019) were released. [17]
Multiple former law clerks leaked details about the 2000 Bush v. Gore decision to Vanity Fair in 2004. [18]
In 2012, days after the ruling in National Federation of Independent Business v. Sebelius was announced, CBS News's Jan Crawford reported that Chief Justice John Roberts had switched his vote, from initially wanting to strike down the law in question, to eventually voting to uphold it. [19] [20]
In 2019, CNN reported on Roberts switching his vote in another high-profile case, Department of Commerce v. New York , which considered whether a question about citizenship status could be added to the 2020 United States census. [21] [22]
In 2022, during oral arguments in Arizona v. City and County of San Francisco, California , Justice Stephen Breyer commented that a claim was "pretty similar to what we just allowed in that case of the attorney general", inadvertently revealing the Court's decision in Cameron v. EMW Women's Surgical Center, P.S.C., eight days before it would be published. [7] [23]
In July 2022, Christian minister Rob Schenck, a former anti-abortion leader who had led a D.C.-based evangelical nonprofit group, sent a letter to Chief Justice Roberts saying that, in 2014, he had been told in advance that Burwell v. Hobby Lobby Stores, Inc. would be decided in favor of Hobby Lobby, and that the opinion would be authored by Justice Samuel Alito. Schenck reportedly obtained this information from a donor, Gayle Wright, who, with her husband, had dinner with Alito and his wife. Schenck gave interviews on the matter to the New York Times , which reported on it in November 2022, stating that "in months of examining Mr. Schenck’s claims, The Times found a trail of contemporaneous emails and conversations that strongly suggested he knew the outcome and the author of the Hobby Lobby decision before it was made public." Alito denied the allegation, and said his relationship with the Wrights was "casual and purely social." [24] [25] [26]
In 2023, Joan Biskupic reported in her book Nine Black Robes that Chief Justice Roberts and Justice Anthony Kennedy had made negotiations with each other on two gay rights cases: Roberts would join Kennedy in granting, vacating, and remanding Pavan v. Smith , ruling that Arkansas could not prevent the name of a lesbian mother who had not given birth from appearing on her child's birth certificate; and Kennedy would join Roberts in granting the appeal of Masterpiece Cakeshop v. Colorado Civil Rights Commission . Biskupic also wrote that the two orders were deliberately announced on the same day: June 26, 2017. [27] [28]
In 2023, CNN reported that the justices left their first conference on Allen v. Milligan without a consensus on either side. However, after a series of negotiations between Chief Justice Roberts and Justice Brett Kavanaugh, the chief justice convinced Kavanaugh, who was "[a]mbivalent during early internal debate," to join him in holding that Alabama's congressional districts were likely illegally racially gerrymandered. [29] [30]
On May 2, 2022, Politico released a leaked 98-page draft opinion authored by Associate Justice Samuel Alito in a highly watched abortion case, Dobbs v. Jackson Women's Health Organization, which had five votes to overturn Roe v. Wade. [1] [31] The draft was from February, but Politico—and later, The Washington Post—reported that the five-vote majority was still intact. [31] [32] The authenticity of the draft was confirmed by Chief Justice John Roberts, who also directed the marshal of the Court, Gail Curley, to conduct an investigation into the source of the leak. [33] [34] It is unlikely that the leak violated any federal criminal laws, unless the draft was obtained by hacking, theft, or other unlawful means. [35] [36] [37] [38]
The final majority opinion released on June 24, 2022, was largely the same as the leaked draft, the main additions responding to the concurrence and dissent. [39] [40]
In January 2023, following an investigation led by the Marshal of the Supreme Court, the Court released a 20-page summary of its investigation. [41] [42] The analysis was independently reviewed by Michael Chertoff, a former judge and Cabinet secretary. [42] The investigation failed "to identify ... by a preponderance of the evidence" the person or persons who leaked the Dobbs draft opinion. [43] Investigators had reviewed computers network and printer logs and interviewed at least 97 court personnel. [41] The investigation counted 82 staff members, in addition to the justices, who had access to the draft. [42] Court staff were asked to provide sworn statements, but neither the justices nor their spouses were interviewed under oath or asked to provide affidavits. [42]
In December 2023, the New York Times released a report about some of the details that led to the Dobbs opinion. In a January 2021 conference, the three liberal justices, Breyer, Sonia Sotomayor, and Elena Kagan, as well as Roberts, opposed granting the petition for certiorari in Dobbs, while the remaining five justices were in favor. Kavanaugh proposed that the Court wait until the spring until publicly deciding to hear the case, ensuring that it would be argued in the following term. This move was to avoid the appearance of moving too quickly after Ginsburg's death and the appointment of Amy Coney Barrett to the Court. Justices Clarence Thomas, Alito, and Neil Gorsuch were opposed to the idea, but Barrett said she would vote against granting certiorari if the case was to be heard during the current term. Despite the Court going along with Kavanaugh's plan, publicly granting the petition in May, Barrett ended up voting against hearing the case despite her earlier declaration. [44] [45]
Roberts reportedly tried to persuade Kavanaugh to join his opinion in Dobbs: to uphold the 15-week ban on abortion at the heart of the case without completely overturning Roe. Breyer, who was open to joining Roberts' opinion in order to save Roe, also joined these efforts; if one member of the majority joined their opinion, Supreme Court rules would have made Roberts' decision the controlling one, given that it was decided on narrower grounds. [44] [45]
In February, after Alito had written his draft of the majority opinion and first circulated it among the justices, Gorsuch gave it his approval within 10 minutes. Thomas and Barrett gave their assent the next morning, followed by Kavanaugh. Unusually, none of them suggested any changes to the draft. The fact that those justices gave their support to the opinion so quickly, given its length of nearly 100 pages, led the Times to suggest that Alito may have "pregamed it among some of the conservative justices, out of view from other colleagues." [44] [45] [46]
On June 26, 2024, the Court inadvertently posted a document to its website that appeared to be an opinion for Moyle v. United States . The opinion seemed to indicate that the court would temporarily allow abortions in medical emergencies in Idaho. [47] The Court said in a statement that the document was "inadvertently and briefly" published, and that its final decision had "not been released" but would be presented in due course. [48] The opinion was published the following day, with little to no change. [49]
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on questions of U.S. constitutional or federal law. It also has original jurisdiction over a narrow range of cases, specifically "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." The court holds the power of judicial review: the ability to invalidate a statute for violating a provision of the Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law.
Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication. The Supreme Court overruled Roe in 2022, ending the constitutional right to abortion.
Planned Parenthood v. Casey, 505 U.S. 833 (1992), was a landmark decision of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of Roe v. Wade (1973) and issued as its "key judgment" the restoration of the undue burden standard when evaluating state-imposed restrictions on that right. Both the essential holding of Roe and the key judgment of Casey were overturned by the Supreme Court in 2022, with its landmark decision in Dobbs v. Jackson Women's Health Organization.
In the United States, abortion is a divisive issue in politics and culture wars, though a majority of Americans support access to abortion. Abortion laws vary widely from state to state.
Samuel Anthony Alito Jr. is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated to the high court by President George W. Bush on October 31, 2005, and has served on it since January 31, 2006. After Antonin Scalia, Alito is the second Italian American justice to serve on the U.S. Supreme Court.
John Glover Roberts Jr. is an American jurist who has served since 2005 as the 17th chief justice of the United States. He has been described as having a moderate conservative judicial philosophy, though he is primarily an institutionalist. For his willingness to work with the Supreme Court's liberal bloc, Roberts has been regarded as a swing vote.
The Roberts Court is the time since 2005 during which the Supreme Court of the United States has been led by John Roberts as Chief Justice. Roberts succeeded William Rehnquist as Chief Justice after Rehnquist's death.
Linda Nellene Coffee is an American lawyer living in Dallas, Texas. Coffee is best known, along with Sarah Weddington, for arguing the precedent-setting United States Supreme Court case Roe v. Wade.
The Supreme Court Historical Society (SCHS) describes itself as "a Washington, D.C.-based private, nonpartisan, not for profit 501(c)(3) membership organization dedicated to preserving and communicating the history of the U.S. Supreme Court, increasing public awareness of the Court’s contribution to our nation’s rich constitutional heritage, and acquiring knowledge covering the history of the entire Judicial Branch."
Brett Michael Kavanaugh is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since October 6, 2018. He was previously a U.S. circuit judge of the U.S. Court of Appeals for the District of Columbia Circuit from 2006 to 2018.
Whole Woman's Health v. Hellerstedt, 579 U.S. 582 (2016), was a landmark decision of the US Supreme Court announced on June 27, 2016. The Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion. On June 28, 2016, the Supreme Court refused to hear challenges from Wisconsin and Mississippi where federal appeals courts had enjoined the enforcement of similar laws.
June Medical Services, LLC v. Russo, 591 U.S. ___ (2020), was a United States Supreme Court case in which the Court ruled that a Louisiana state law placing hospital-admission requirements on abortion clinics doctors was unconstitutional. The law mirrored a Texas state law that the Court found unconstitutional in 2016 in Whole Woman's Health v. Hellerstedt (WWH).
As of 2024, abortion is illegal in Indiana. It is only legal in cases involving fatal fetal abnormalities, to preserve the life and physical health of the mother, and in cases of rape or incest up to 10 weeks of pregnancy. Previously abortion in Indiana was legal up to 20 weeks; a near-total ban that was scheduled to take effect on August 1, 2023, was placed on hold due to further legal challenges, but is set to take place, after the Indiana Supreme Court denied an appeal by the ACLU, and once it certifies a previous ruling that an abortion ban doesn't violate the state constitution. In the wake of the 2022 Dobbs Supreme Court ruling, abortion in Indiana remained legal despite Indiana lawmakers voting in favor of a near-total abortion ban on August 5, 2022. Governor Eric Holcomb signed this bill into law the same day. The new law became effective on September 15, 2022. However, on September 22, 2022, Special Judge Kelsey B. Hanlon of the Monroe County Circuit Court granted a preliminary injunction against the enforcement of the ban. Her ruling allows the state's previous abortion law, which allows abortions up to 20 weeks after fertilization with exceptions for rape and incest, to remain in effect.
Box v. Planned Parenthood of Indiana and Kentucky, Inc., No. 18-483, 587 U.S. ___, 139 S.Ct. 1780 (2019), was a United States Supreme Court case dealing with the constitutionality of a 2016 anti-abortion law passed in the state of Indiana. Indiana's law sought to ban abortions performed solely on the basis of the fetus' gender, race, ethnicity, or disabilities. Lower courts had blocked enforcement of the law for violating a woman's right to abortion under privacy concerns within the Fourteenth Amendment, as previously found in the landmark cases Roe v. Wade and Planned Parenthood v. Casey. The lower courts also blocked enforcement of another portion of the law that required the disposal of aborted fetuses through burial or cremation. The per curiam decision by the Supreme Court overturned the injunction on the fetal disposal portion of the law, but otherwise did not challenge or confirm the lower courts' ruling on the non-discrimination clauses, leaving these in place.
Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), returning to the federal and state legislatures the power to regulate any aspect of abortion not protected by federal statutory law.
A series of ongoing protests supporting abortion rights and anti-abortion counter-protests began in the United States on May 2, 2022, following the leak of a draft majority opinion for the U.S. Supreme Court case Dobbs v. Jackson Women's Health Organization, which stated that the Constitution of the United States does not confer any Reproductive rights, thus overturning Roe v. Wade and Planned Parenthood v. Casey. On June 24, 2022, the Supreme Court officially overturned Roe and Casey in Dobbs, resulting in further protests outside of the U.S. Supreme Court building and across the country, eventually to major cities across the world both in favor of and against the decision.
Jane's Revenge is a militant, extremist abortion rights group that encourages and claims responsibility for acts of firebombing, vandalism, and arson in the United States. The group's actions have targeted crisis pregnancy centers, a church, and a congressional office. The claimed attacks began in May 2022 following the leak of a draft of the Supreme Court's anticipated decision in Dobbs v. Jackson Women's Health Organization; the draft indicated that the Court would soon overturn its 1973 abortion rights decision in Roe v. Wade, and the Court, in fact, did reverse Roe the following month when its final decision in Dobbs was released.
On June 8, 2022, Nicholas Roske traveled to the home of Brett Kavanaugh, an associate justice of the United States Supreme Court, with plans to break in Kavanaugh's home, kill him, and then commit suicide. After arriving at Kavanaugh's residence, Roske called the police on himself and was arrested.
Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), was a United States Supreme Court case to challenge the U.S. Food and Drug Administration (FDA)'s approval of mifepristone, a drug frequently used in medical abortion procedures. The plaintiffs, led by the Alliance for Hippocratic Medicine (AHM), argued that the FDA did not properly approve the use of the drug mifepristone for pregnancy termination under Federal Food, Drug, and Cosmetic Act regulations and asked for an injunction to withdraw the drug's approval, thus removing it from the market. AHM's suit followed the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization in 2022, which reversed Roe v. Wade and asserted there was no constitutional right to abortion at the federal level, leading conservative states and groups to further restrict abortion access.
Moyle v. United States, 603 U.S. ___ (2024), was a United States Supreme Court case about whether an Idaho abortion law conflicted with the federal Emergency Medical Treatment and Labor Act (EMTALA). The court initially agreed to expedite the appeal and temporarily allowed Idaho to enforce its abortion ban. After hearing the case, the court dismissed it as improvidently granted and restored a lower court order allowing emergency abortions under EMTALA. This returned the case to the lower courts without a ruling on the merits.
The blockbuster leak of a draft Supreme Court opinion in a high-profile abortion case is probably not illegal, according to legal experts.
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