The court that rarely leaks now does so in the biggest case in years

WASHINGTON (AP) — The Supreme Court is keeping secrets. Year after year, in big case after big case, there is little beyond what judges say during oral arguments to suggest how they will rule until they actually do.

That is, apparently, until Monday night when Politico published what it said is a draft opinion in a major abortion case that was argued in the fall. While there have, on very rare occasions, been leaks of case results, the publication of an apparent nearly 100-page draft had no obvious modern parallel.

The draft says the majority of the court is prepared to overturn the landmark 1973 decision, Roe v. Wade, who legalized abortion across the country. A decision in the case was expected before the court begins its summer recess in late June or early July, so it could be more than a month before the court issues a final opinion. If the court does what the draft suggests, the ruling would overturn a nearly 50-year-old decision; its early publication would also disturb an almost unbroken tradition of secrecy at court.

The document released by Politico, which The Associated Press was unable to independently verify but which some court observers said appeared legitimate, says the court’s opinion is issued by Judge Samuel Alito. He also says that the draft was distributed to other members of the court in February. Alito is a member of the court’s six-judge conservative majority.

Lawyers and others closely watching the court were shocked. Neal Katyal, who has argued dozens of cases in court and as a young lawyer worked for Judge Stephen Breyer, compared the apparent leak to The New York Times’ 1971 publication of the government’s secret history of the Vietnam War, known as like the Pentagon Papers. .

“This is the equivalent of the Pentagon document leak, but in the Supreme Court. I’m pretty sure there has never been a leak like this. And certainly not in the years I’ve been following the Supreme Court,” Katyal wrote on Twitter.

Part of the reason the Supreme Court has historically been so leak-proof is that only a handful of people have access to decisions before they are published. That includes the judges themselves and the small group of people who work for them. The judicial secretaries, young lawyers who work for the judges for a year and who would be among those who could see a draft opinion, sign confidentiality agreements.

Still, there have been leaks before, though not of the apparent magnitude of the document published by Politico. In 1973, for example, David Beckwith of Time magazine reported the outcome of Roe v. Wade before the decision was published. But because the magazine was weekly, the Beckwith scoop came just hours before the decision was made public.

And in the late 1970s, ABC’s Tim O’Brien had half a dozen scoops on the glitches. The reports stunned and upset justices, according to a book by Barrett McGurn, a former public information officer for the court. It was unclear where O’Brien got the information from him, although then-Chief Justice Warren Burger suspected someone at the court’s printing press, who would have had access to the rulings.

It was also unclear who might have leaked the apparent draft to Politico or what their motivations might be. The news outlet said only that it had “received a copy of the draft opinion from a person familiar with court proceedings … along with other details that support the authenticity of the document.”

University of Georgia professor Jonathan Peters, who has written about leaks in court, has pointed out that Roe is not the only high-profile case where there has been a leak. The New York Tribune, for example, published a “continuing report of the court’s deliberations on Dred Scott,” the infamous 1857 decision that declared African Americans ineligible for citizenship.

“Supreme Court leaks are rare but unprecedented,” Peters wrote in 2012. “The court, like our other public institutions, is made up of political animals. We shouldn’t be surprised when they act that way.”