While there have, on very rare occasions, been leaks of the outcomes in cases, the publication of an apparent draft running nearly 100 pages was without an evident modern parallel.
The draft says that a majority of the court is prepared to overrule the landmark 1973 decision, Roe v. Wade, that legalized abortion nationwide. A decision in the case had been expected before the court begins its summer recess in late June or early July, so it could be more than a month before the court actually issues a final opinion.
Lawyers and others who watch the court closely were shocked. Neal Katyal, who has argued dozens of cases before the court and as a young lawyer worked for Justice Stephen Breyer, compared the apparent leak to The New York Times’ 1971 publication of the government’s secret history of the Vietnam War, known as the Pentagon Papers.
Part of the reason the Supreme Court has historically been so leak-proof is that only a handful of people have access to decisions before they’re published. That includes the justices themselves and the small group of people who work for them. The justices’ clerks, young lawyers who work for the justices for a year and who would be among those who could see a draft opinion, sign pledges of confidentiality.
And in the late 1970s, ABC’s Tim O’Brien had a half a dozen scoops on rulings. The reports both astonished and upset the justices, according to a book by Barrett McGurn, the court’s former public information officer. It was unclear where O’Brien was getting his information, though then-Chief Justice Warren Burger suspected someone in the court’s print shop, who would have had access to the rulings.
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