The leaked first draft opinion of the Supreme Court’s majority view to overturn Roe v. Wade may or may not be the justices’ final decision.
But its publication definitely unleashed a tidal wave of astonishment over the crack in the court’s decision-making security.
Legal scholars and media outlets described it as unheard of. Politico, recipient of the leaked document, called its scoop unprecedented insight into the court’s deliberations on a case of great public interest.
Those descriptions require an asterisk.
The court’s original Roe v. Wade decision in 1973 supporting a woman’s right to an abortion had been given to a Time magazine journalist and prematurely published hours before the court’s official announcement.
Washington Post’s James D. Robenalt recalled the previous leak in a story detailing how it happened.
Seems a law clerk for then Justice Lewis Powell gave an advance copy of the Roe v. Wade decision to the Time reporter for background, with the understanding it would not appear in the magazine until after release by the court. A court delay resulted in pre-release publication.
A fuming Chief Justice Warren Burger demanded the leaker’s identity, threatening to require all the court’s law clerks to take lie-detector tests. But Powell’s clerk, Larry Hammond, acknowledged he was the culprit, apologizing and explaining his arrangement with the Time reporter to hold his story until the court formally released its decision. Burger accepted his apology.
“The story of Hammond’s close call became legend to other clerks on the court at the time and has been passed down as a cautionary tale over time,” wrote Robenalt.
Present Chief Justice John Roberts promptly opened an investigation into who gave Politico the draft opinion in the Mississippi case challenging the Roe v. Wade decision 50 years later.
He also verified the authenticity of the draft majority opinion obtained by Politico from an anonymous source, reminding the public “it does not represent a decision by the Court or the final position of any member on the issues of the case.”
Politico rightly pointed that out in its story, noting justices indicate tentative impressions after oral arguments by plaintiffs and defendants. A justice advocating for the majority writes an initial draft of the court’s opinion, which is then circulated among the other justices for comments, amendments and possible change of minds.
Just how far Roberts will go in trying to identify the leaker is anyone’s guess. The court operates mostly in private.
He would be unwise to pressure Politico or its reporters into divulging their source for the story that has all sides of the abortion issue abuzz.
And with good reason.
If the initial draft of the court opinion is prelude to the final decision, it will dramatically change the national landscape on abortion.
More than 25 states have laws or state constitutional amendments in place to ban or severely restrict abortion if Roe v. Wade is no longer the law of the land.
Bill Ketter is CNHI’s senior vice president of news. Reach him at email@example.com.