The recent leak of the initial draft majority opinion led by Justice Samuel Alito has a lot of folks scratching their heads as to what it all means. Previously, it was said that such a leak is rare, however, in the case of Roe v. Wade this is not the first time such a thing has occurred.
“No fully-formed draft opinion has been leaked to the press or outside the court,” said National Public Radio’s (NPR) Nina Totenberg. “Once or twice there may have been leaks that say how is something going to turn out, or after-the-fact that somebody may have changed his or her mind. But this is a full-flown, Pentagon Papers-type compromise of the court’s work.
She also referred to exposure of the initial draft majority opinion documents as a “bomb at the court,” noting that it goes against everything the Supreme Court stands for specifically when it comes to the members’ trust in both one another and their law clerks.
While previous leaks have been different, what is the same is the controversy around the Roe v. Wade case. Prior to last night’s (May 2) leak, there were two other incidents where the public was notified about what was going on behind the scenes.
In fact, the original 1973 decision was leaked to the press before the court’s formal announcement. According to Jonathan Peters, who is a current media law professor at the University of Georgia, there were two leaks of Roe v. Wade during the 1970s.
It’s remarkable, the leak of what appears to be an initial draft majority opinion. SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations. But the Court does occasionally leak, and it has leaked before about Roe v. Wade. 1/x
— Jonathan Peters (@jonathanwpeters) May 3, 2022
The first included a June 1972 memo from Justice William O. Douglas that was meant for his counterparts that somehow ended up in the hands of the public through a story shared via the Washington Post.
Additionally, a story that ran in Time magazine revealed both the intimate details of the vote and the final decision just hours ahead of the court’s plans to announce the outcome. The move ultimately delayed the ruling.