No, this is not the first major leak from the US Supreme Court

ST. PETERSBURG, Fla. — In what’s being called a remarkable leak from the nation’s highest court, an initial draft majority opinion overturning the landmark Roe v. Wade decision was published Monday evening by Politico.

Politico reports that “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

While that may be true, is it the first major leak ever from the U.S. Supreme Court?

In a tweet that’s now been re-shared tens of thousands of times, former acting solicitor general Neal Katyal compared the leak to the Pentagon Papers and stated it’s “the first major leak from the Supreme Court ever.”

THE QUESTION

Is this the first major leak ever from the U.S. Supreme Court?

THE SOURCES

• Jonathan Peters, media law professor at the University of Georgia’s Grady College
• “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changes American Forever” by James Robenalt
• “The Sexes: Abortion on Demand” published in Time Magazine

THE ANSWER

No, this is not the first major leak ever from the U.S. Supreme Court. While leaks are rare, they are not unprecedented and, in fact, the court has leaked before about Roe v. Wade.

WHAT WE FOUND

Jonathan Peters, an associate media law professor with the University of Georgia’s Grady College, says the recorded history of leaks from the high court dates back to the mid-19th century, ranging from leaked accounts of conflicts between justices to, in some cases, opinions before release.

Peters, in an extensive thread on Twitter, details an instance as far back as 1852 when the outcome of a case was reported in a newspaper a full 10 days before the court officially handed down its decision.

More recently, a memo about the court’s inner deliberations about Roe v. Wade was leaked to the Washington Post in June 1972, according to Peters. The following January, Time Magazine then published a story about the outcome and vote of Roe v. Wade before it was officially announced.

The 1973 report, “The Sexes: Abortion on Demand,” can be found on Time’s website here.

The Supreme Court clerk who leaked the story was later interviewed by author James Robenalt for his book “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.”

The clerk confided in the Time reporter who was given information, “to get a jump on what opinions would be,” Robenalt wrote. But the piece was supposed to be published once the opinion came down.

However, the opinion was delayed by several days and so the article wound up appearing on newsstands mere hours before it was officially issued by the court.

Because of the delay, “editors had a scoop and decided to run with it,” Robenalt wrote.

The court’s chief justice at the time was so incensed about the leak, according to Peters, he demanded a meeting with Time’s editors.

“The chief justice believed a law clerk was to blame, so he ordered all clerks not to speak to reporters,” Peters said. “This resulted in what became known as the “20-second rule”: Any clerk caught talking to a reporter would be fired within 20 seconds.”

In other cases, leaks have been more reflective, like in 2004 when a group of law clerks from the 2000 terms leaked details of the Bush v. Gore deliberations to Vanity Fair, Peters noted.