{"id":16,"date":"2026-05-24T13:12:24","date_gmt":"2026-05-24T13:12:24","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=16"},"modified":"2026-05-24T13:12:24","modified_gmt":"2026-05-24T13:12:24","slug":"a-history-of-supreme-court-leaks-2","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=16","title":{"rendered":"A history of Supreme Court leaks"},"content":{"rendered":"
\n

Last month, The New York Times published a major scoop: the inside story of the Supreme Court\u2019s 2016 order blocking then-President Barack Obama\u2019s Clean Power Plan, an environmental initiative intended to address climate change, on its interim docket.<\/p>\n

Read more A history of Supreme Court leaks<\/a><\/p>\n

In the story, Jodi Kantor and Adam Liptak suggested that the order \u201cmarks the birth \u2026 of the court\u2019s modern \u2018shadow docket,\u2019 the secretive track that the Supreme Court has since used to make many major decisions.\u201d But Kantor and Liptak\u2019s story was notable for another reason: it relied on a series of confidential internal memos that the Times had obtained from an undisclosed source. This was a rare leak from an institution that prides itself on keeping its internal workings out of the public eye \u2013 and has mostly, but not entirely, succeeded.<\/p>\n

Perhaps the leak that will come to most readers\u2019 minds was also one of the most significant leaks in Supreme Court history. On May 2, 2022, Politico reporters Josh Gerstein and Alexander Ward published what they described as a draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women\u2019s Health Organization<\/em> that would overturn the constitutional right to an abortion recognized in .<\/p>\n

The Supreme Court confirmed that the draft opinion was authentic and announced that the court\u2019s marshal, Gail Curley, would lead an investigation into the leak. In January 2023, however, the court in which it revealed that Curley\u2019s team had \u201cto date been unable to identify a person responsible\u201d for the leak \u201cby a preponderance of the evidence.\u201d<\/p>\n

The draft opinion itself sparked protests around the country, including at the Supreme Court building and some justices\u2019 houses. Justice Brett Kavanaugh was also the target of an attempted assassination in June 2022. The would-be assassin, who cited the leak of the draft opinion as a motive, pleaded guilty last year and was sentenced to eight years in a federal prison.<\/p>\n

Although the Dobbs<\/em> leak was one of the most dramatic leaks in Supreme Court history, leaks of confidential information (without confidential documents accompanying that information) have been significantly more common \u2013 if not commonplace \u2013 for more than a century.<\/p>\n

Some of these leaks occurred before the decisions involved were released. Shortly after the Dobbs<\/em> leak, for example, that in the 1850s, the New York Tribune revealed the outcome of the Supreme Court\u2019s decision in a dispute between Pennsylvania and the Wheeling & Belmont Bridge Company not once but twice \u2013 in 1852 and then again when the case came back to the court in 1854.<\/p>\n

In 2002, John Owens, now a judge on the U.S. Court of Appeals for the 9th Circuit, of Ashton Embry, a former law clerk to Justice Joseph McKenna who was indicted in 1920 on charges that he had leaked the results of the Supreme Court\u2019s decision in a case involving Southern Pacific Railroad to investors, who made money by selling the company\u2019s stock before the decision was released. Embry\u2019s indictment was dismissed nearly a decade later.<\/p>\n

Although the draft opinion itself was not leaked in Roe<\/em>, there were two different leaks disclosing the machinations behind the scenes, and ultimately the results, in that case. The first leak, Peters noted, was an unsigned 1972 article in The Washington Post that described the \u201cinternal court struggle over\u201d the case, including the results of the initial vote and efforts by then-Chief Justice Warren Burger to delay the court\u2019s decision. The story also discussed the substance of several private notes and memoranda exchanged among the justices, although it did not publish the notes and memoranda themselves.<\/p>\n

Read more Hello world!<\/a><\/p>\n

And in 1973, a law clerk revealed the results of the decision to a reporter for Time magazine, giving him the information “on background\u201d to use after<\/em> the opinion was released. But the opinion was delayed, and Time instead published the story shortly before<\/em> the opinion announcement on Jan. 22, 1973. According to Peters, the incident led to Burger\u2019s creation of what became known as the \u201c20-second rule\u201d for law clerks: any law clerk seen talking to a reporter would be automatically fired within 20 seconds.<\/p>\n

Court insiders have also disclosed confidential information to reporters after decisions have already been released, often shedding new light on the court\u2019s decision-making process even if the results in a particular case are already public. In 1979, journalists Bob Woodward and Scott Armstrong published The Brethren, a detailed, behind-the-scenes look at the first few years of Warren Burger\u2019s tenure as the court\u2019s chief justice. Closed Chambers, published in 1998 by Edward Lazarus, pulled back the curtain on his year as a law clerk to Justice Harry Blackmun.<\/p>\n

And in October 2004, law clerks who were working at the court when the justices issued their 5-4 decision in , which ended the presidential election recount in Florida and allowed for the victory of George W. Bush, spoke with reporters for Vanity Fair. The clerks, who were not identified, offered a detailed look behind the scenes of the court\u2019s handling of the litigation and criticized the court\u2019s decision as driven by partisanship on the part of the court\u2019s conservative justices; the article, and the clerks\u2019 decision to speak with Vanity Fair, in turn drew criticism from other former law clerks and judges.\u00a0<\/p>\n

Eight years later, Jan Crawford of CBS News broke the story of an about-face by Chief Justice John Roberts on the validity of the Affordable Care Act\u2019s individual mandate, which required nearly everyone in the United States to buy health insurance or pay a penalty. Roberts, Crawford wrote, \u201cinitially sided with the Supreme Court\u2019s four conservative justices to strike down the heart of President Obama\u2019s health care reform law, \u2026 but later changed his position and formed an alliance with liberals to uphold the bulk of the law.\u201d Crawford attributed her reporting to \u201ctwo sources with specific knowledge of the deliberations.\u201d<\/p>\n

In 2019, CNN\u2019s Joan Biskupic reported that Roberts had changed his vote in the challenge to the inclusion of a question about citizenship on the 2020 census, ultimately agreeing with the court\u2019s (then) four Democratic appointees that there was \u201ca significant mismatch between the decision the Secretary made and the rationale he provided.\u201d Much like Crawford, Biskupic wrote that her information came from \u201csources familiar with the private Supreme Court deliberations.\u201d<\/p>\n

Just over a year and a half after the leak of the draft opinion in Dobbs<\/em>, Kantor and Liptak reported on the \u201cinside story\u201d of the Dobbs<\/em> decision. Among the many details revealed for the first time in their story was that Justice Amy Coney Barrett, who eventually joined Alito\u2019s opinion overturning Roe<\/em>, at one point voted against taking the case. Moreover, they wrote, although the justices agreed in early January 2021 to grant review, the court delayed its announcement that it would hear oral argument in the case until May, at Kavanaugh\u2019s suggestion.<\/p>\n

In 2024, Kantor and Liptak pulled back the curtain on yet another set of proceedings at the court that had already concluded, this time involving (among others) the court\u2019s decision granting President Donald Trump broad immunity from criminal prosecution for his acts as president. Roberts, Kantor and Liptak reported, had sent his colleagues \u201ca confidential memo that radiated frustration and certainty.\u201d \u201cHe wrote,\u201d they continued, \u201cnot only that the Supreme Court should take the case \u2014 which would stall the trial \u2014 but also how the justices should decide it.\u201d<\/p>\n

In a recent appearance on Fox News Sunday to promote his new children\u2019s book, Justice Neil Gorsuch criticized the recent spate of leaks, saying that the court needs to be able to \u201cleave room for candid conversations and deliberations with one another.\u201d But with the current divisions on the court, and the aggressive efforts by outlets like The New York Times to uncover more information about what is going on behind the scenes, we may well see even more leaks in the years to come.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Last month, The New York Times published a major scoop: the inside story of the Supreme Court\u2019s 2016 order blocking then-President Barack Obama\u2019s Clean Power Plan, an environmental initiative intended to address climate change, on its interim docket. 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