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The leak of Supreme Court Justice Samuel Alito’s draft majority opinion, which paves the way for the court to overturn it Roe vs. Wade and Family planning c. Caseyhas come as a shock to longtime court watchers, who have rarely had information about its deliberations released to the public.
“The alleged leak of opinion in Dobbs v. Jackson Women’s Health Organization is simply mind-boggling,” said legal analyst Jonathan Turley. said on Twitter Monday. “This would constitute one of the biggest security breaches in the Court’s history.”
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The leaked document was shared with Politico reporters, who released details of the draft notice Monday evening. The newspaper claimed that “no draft decision in the Court’s modern history has been released publicly while a case was still pending”, a nod to the rarity of such violations.
While Turley’s shock at the leaked document was shared by many, it’s not the first time sensitive information about Supreme Court proceedings has been leaked.
The original Roe decision itself was leaked multiple times during the deliberations, with the first leak coming in the form of an internal deliberations memo that was leaked to The Washington Post.
After Roe was heard from again so newly confirmed judges Lewis Powell and William Rehnquist could sit on the bench for the landmark case, the final ruling in the case was leaked to Time Magazine before it was announced. . Time released the court’s ruling hours before the court’s decision was made public, a decision that infuriated Chief Justice Warren Burger.
Burger has written to all the judges demanding that the source of the leak be found, but the leak would not be the first or the last time sensitive court information has found its way into the hands of the press.
In the mid-19th century, the New York Tribune published three Supreme Court opinions before their official publication. The first came in 1852 when the publication published the results of Pennsylvania v. Wheeling and Belmont Bridge Company ten days before the publication of the official decision. When that same case came back to court a few years later, the Tribune again published its decision before the court could announce it.
The Tribune was back later that year, publishing details of the deliberations in the infamous Case Dred Scott v John FA Sandford as they happened.
In a more recent case, CBS News was able to obtain information about the deliberations that showed Chief Justice John Roberts changed his mind in the background. National Federation of Independent Businesses c. Sebelius which upheld most provisions of the Affordable Care Act, including the controversial individual mandate.
Roberts was originally going to vote with his fellow Tories to overturn the law, but changed his mind at the last minute and decided the penalty for not having insurance was actually a tax, keeping the mandate in place.
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But Turley believes the leak of a draft majority opinion represents a new low in the court’s history, calling it a “breach of the court’s most fundamental obligations and traditions”.
“This project dates from February and the majority can switch to such opinions,” he added. “However, disclosing such a draft opinion is an original sin of judicial ethics.”
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