The original Roe v. Wade was also leaked

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The Politico news site sent shockwaves across the country last night when it published what appears to be a first draft majority opinion – written by Judge Samuel Alito and reportedly circulating inside the court – suggesting that the United States Supreme Court intends to strike down Roe vs. Wade.

NPR has not independently verified the document, and it is not yet clear how similar it might be to the court’s final opinion, which is expected in the coming months. But NPR’s legal affairs correspondent Nina Totenberg told morning edition that “it really smells, looks and feels like the real thing.”

Taking down Roe would effectively end federal protections of abortion rights, opening the door for states to ban or restrict access to the procedure. While such a move would have huge ramifications, legal experts and onlookers alike are struck by how the draft notice made its way into public opinion in the first place.

Leaks of any kind are rare at the Supreme Court, and Totenberg says there hasn’t been such a massive breach in modern history. She called it a “court bomb” that undermines everything the body stands for internally and institutionally, including its members’ trust in their lawyers and each other.

“No fully formed draft opinion was disclosed to the press or outside of court,” Totenberg said. “Once or twice there may have been leaks that say how something is going to happen, or after the fact that someone may have changed their mind. But it’s a compromise in its own right, type Pentagon Papers, from the work of the yard.”

There were actually two deer– related leaks

There have been court leaks before, albeit on a different scale. One of them was actually about the case at the heart of today’s conversation: in 1973, the original deer decision was leaked to the press before the court officially announced it.

Jonathan Peters, a media law professor at the University of Georgia, noted in a Twitter thread that there were actually two deer-related leaks in the 1970s.

First the Washington Post published an article about the court’s internal deliberations, including a June 1972 memo from Judge William O. Douglas to his colleagues that was mysteriously leaked.

Seven months later, Weather The magazine published the final decision and voting details just hours before the court announced it – the result of an early scoop and a delayed decision.

A Supreme Court clerk named Larry Hammond said Weather staff reporter David Beckwith, an acquaintance from the law school, that the deer the decision was coming, according to lawyer and author James Robenalt, who detailed the incident in a Washington Post column yesterday.

Hammond gave Beckwith the “substantive” information, and it was not to be reported until the court’s opinion was rendered. But the decision was delayed slightly, and this week’s magazine ended up hitting newsstands hours too early.

Members of the Supreme Court in 1972. Seated left to right are Potter Stewart, William O. Douglas, Chief Justice Warren E. Burger, William J. Brennan Jr. and Byron R. White. Standing, left to right, Lewis F. Powell Jr., Thurgood Marshall, Harry A. Blackman and William H. Rehnquist.

The “20 second rule” and a double cross

Then-Chief Justice Warren Burger was reportedly furious at the leak, demanding a meeting with Weatherthe editors tell them off. He also sent a letter to the other judges demanding that the funder be identified and punished, and threatened to subject clerks to lie detector tests if no one showed up, Robenalt said.

According to Petersthis was also the origin of Burger’s “20-second rule”, whereby any clerk caught talking to a reporter would be fired within half a minute.

Hammond tendered his resignation to his boss, Judge Lewis Powell. But Powell didn’t accept it and instead called Burger to tell him “Hammond had been double-crossed,” writes Robenalt, who interviewed Hammond. for his 2015 book on the political and cultural events of January 1973.

Burger was not quick to forgive the magazine, but accepted Hammond’s apology and let him stay as Powell’s clerk. He continued in this role for an additional term before leaving court to join the Watergate Special Prosecution Force.

“The story of Hammond’s close call became legend to other court clerks at the time and has been passed down as a cautionary tale over time,” Robenalt added.

Five decades later, the court is once again grappling with an internal leak over a groundbreaking ruling on issues concerning reproductive rights.

totenberg said morning edition that while such a leak is not a crime, she believes the court will try internally to determine who was responsible, adding that “it’s career ending for whoever did it.”


This story originally appeared in the morning edition live blog.

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