Just an hour after Politico broke the story, CNN’s chief legal analyst Jeffrey Toobin stressed the seemingly unprecedented nature of the leak on the air.
“I can’t emphasize enough, as someone who has covered this court for 30 years, who’s written two books on the court, there has never been a leak anything like this,” he said. “There’s never been a leak of a vote — much less an actual opinion, much less in a case of this significance.”
“There has never been a leak of a vote, much less an actual opinion, much less in a case of this significance,” @JeffreyToobin says. He calls it a “shattering experience for the justices” and says “I really don’t know how the institution is going to recover.” pic.twitter.com/ndkFO9vq0u
— Brian Stelter (@brianstelter) May 3, 2022
The court has not issued a final decision that would overturn Roe, but Chief Justice John Roberts confirmed on May 3 that the draft opinion was authentic. In the same statement, he ordered the Supreme Court marshal to launch an investigation into the source of the leak.
Roberts described the leak as an “egregious breach of trust” and a “betrayal of the confidences of the court” in violation of court employees’ longstanding “tradition of respecting the confidentiality of the judicial process.”
Supreme Court leaks are rare, but not as wholly unprecedented as Toobin’s initial claim might suggest.
A Supreme Court clerk, for example, leaked the original Roe ruling to a Time magazine reporter, resulting in an article about the decision hitting newsstands hours before the court officially announced its ruling.
Still, Lucas Powe Jr., a Supreme Court historian and professor of government at the University of Texas at Austin School of Law, said that he could count the number of significant Supreme Court leaks “probably without going to a second hand to get more fingers.”
He said he’d been wracking his brain for examples, but “to the best of my knowledge, there’s never been a leak like this one.”
What sets the most recent leak apart is its timing, content and scope, experts said. The draft, which was dated February 2022, is prospective and the opinion isn’t expected to be officially released for more than a month, said Jonathan Peters, a media law professor at the University of Georgia who has studied and written about the history of Supreme Court leaks.
“Anything can happen in that intervening time,” Peters said.
Peters said he could only think of one other time in modern history that the draft of an opinion reached a member of the press before the opinion was released.
That happened in 1981, when UPI reporter Elizabeth Olson obtained a document that “appeared to show, in advance, the outcome of a sex discrimination case,” Peters said. Olson wrote a story about it, but UPI’s Washington bureau chief chose not to run it on grounds that the organization couldn’t confirm the document’s authenticity.
“When he (the bureau chief) was later asked about it, he characterized the document as eight pages, unsigned, undated and what appeared to be a dissenting opinion,” Peters explained. “He said it came into Olson’s possession accidentally and that it was attached, mistakenly, to other material that the court had distributed to Olson.”
But even that scenario differed from the May 2 leak in the Mississippi abortion case: “It was not a full draft of a majority opinion, and ultimately, it was not publicly released,” Peters said.
In the early history of the court, intentional leaks were more common, Peters said. In the 19th century, justices seemed more actively interested in what the press had to say about decisions, he said.
“The justices were also trying to shape news coverage of the court and public opinion of the court,” Peters said. “One of the ways that they occasionally did that was through opinion releases.”
Today, when the Supreme Court releases a decision, the opinion is announced orally in the courtroom and simultaneously released by the public information office and on the Supreme Court website as a PDF. In the mid-1800s, decisions were read from the bench, but the full opinions were printed and released later.
In 1857, when the court was handing down the Dred Scott v. Stanford decision that ruled people who had been enslaved could not be American citizens, the two dissenting justices released their dissenting opinions to the press before the court released its majority opinion, Peters said.
“Then, in response to public reaction, the Chief Justice actually revised his opinion before he had it printed and released,” Peters said.
Neither of those examples mirrored exactly what happened with the most recent leak, so Peters said he thinks it is fair to say that the public release of a draft majority opinion is unprecedented.
Powe, who said he’d been stunned by the leak since he heard the news, agreed: “There’s just never been a leak of a full opinion.”
Peters added that there are “numerous cases” in the court’s history, particularly in the 1970s, where case outcomes were leaked to the press before the decisions were announced, but he emphasized that leaks are the exception, not the rule. (The original Roe ruling leak is one such example, but there are others.)
Then, Time magazine published a story about Roe v. Wade before the court announced it, reporting the outcome and the vote. Infuriated, Burger demanded a meeting with Time’s editors, chastising them for scooping the court.
— Jonathan Peters (@jonathanwpeters) May 3, 2022
Retrospective leaks answering questions about the inside deliberations have happened as well. In 2012, for example, CBS reported that Chief Justice John Roberts had initially sided with the conservatives before switching his vote to side with the liberal justices to uphold the constitutionality of the Affordable Care Act.
More recently, CNN’s Joan Biskupic in 2020 produced a series of stories relying on unnamed sources that provided a “deeply-reported account of how the justices decided the most controversial cases of that term,” Peters said.
Toobin, for his part, told PolitiFact that, since he made his initial comments to CNN, he has modified how he characterizes the leak, not repeating the part about there not having been leaks of votes.
“There have been very occasional leaks of votes,” Toobin said, and sometimes those leaks turned out to be incorrect. But he stood by the thrust of his observation that this one stands apart.
There has never been anything, he said, like “the leak of a full opinion in a very major case, weeks in advance of the release of the actual decision.”
Toobin said there has never been a Supreme Court leak “anything like this. There’s never been a leak of a vote — much less an actual opinion, much less in a case of this significance.”
Votes have been leaked in the past, but Supreme Court leaks are widely considered rare. Experts said the public release of a draft majority opinion this far in advance of an expected ruling was indeed unprecedented.
We rate this claim Mostly True.
CORRECTION (May 6, 2022): This fact-check was corrected to properly identify UPI reporter Elizabeth Olson.