In 1973, a Leak at the Supreme Court Broke News of an Imminent Ruling on Roe v. Wade

Chief Justice Warren Burger settled down in his chambers on January 22, 1973, with the latest issue of Time magazine. Tucked inside, about halfway through the 98-page publication, was a sensational scoop that left little uncertainty regarding the court’s ruling in Roe v. Wade. As the piece’s headline declared, “Abortion on Demand” had officially arrived in America. Burger was incensed; the court had yet to issue its landmark decision legalizing abortion and, in fact, was scheduled to release it that afternoon.

The source of the story was a Supreme Court clerk who’d provided the information to a Time reporter on the condition that he only publish his article after the ruling was made public. But a delay in the decision’s announcement led Time to inadvertently jump the gun—and, in doing so, attract the ire of Burger, who immediately called for the leaker to be found and punished.

“The Supreme Court has always jealously guarded its opinions, and secrecy is critical to maintaining an evenhanded approach to dispensing justice,” writes James D. Robenalt, author of January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever, for the Washington Post. “There are obvious and profound consequences if litigants and the public are tipped off to the result in a case before it has been formally announced and adopted.”

Robenalt’s assessment applies to both the 1973 disclosure and the stunning report published by Politico on Monday. The online publication obtained a draft majority opinion by Justice Samuel Alito that represents “a full-throated, unflinching repudiation” of Roe v. Wade, according to reporters Josh Gerstein and Alexander Ward.

Written in early February, Alito’s 98-page draft indicates that the Supreme Court will overturn Roe by a 5-to-4 or 6-to-3 majority (how Chief Justice John Roberts plans to vote is unclear) within the next two months, before the court breaks for its summer recess. Roberts confirmed the document’s authenticity in a statement describing the leak as “a singular and egregious breach of … trust” and pledging to investigate the matter in full. Per the Associated Press’ Jessica Gresko, around 70 people, including the justices and their staff, likely had access to the draft.

The leak, while newsworthy in its own right, actually has some precedents, despite what some experts have suggested. Writing on Twitter shortly after the news broke, Neal Katyal, former acting solicitor general, called the story “the first major leak from the Supreme Court ever,” equivalent to the Pentagon Papers published by the New York Times in 1971. But Jonathan Peters, a media law expert at the University of Georgia, pointed out in a separate Twitter thread that Roe-related leaks happened not once, but twice, albeit on a less dramatic scale. For the Post, Robenalt writes, “[I]t is not true that rulings have never been given to journalists before the announcement of the decision by the court.”

According to NPR’s Rachel Treisman, the first leak cited by Peters took place in June 1972, when the Washington Post, drawing on an internal memo written by Justice William O. Douglas, published a story about the court’s deliberations.

Roe had originally been argued in December 1971, but due to disagreements among the justices, and the fact that two justices had been sworn in since the case’s initial hearing, Burger pushed for its postponement and reargument. Douglas, who had been the senior judge in the pro-legalization majority, “circulated a note demanding that the abortion decisions be reported out immediately” and blaming tactics used by Burger for the “impasse,” per the Post.

Burger eventually prevailed, with Douglas relenting and agreeing to reargue Roe in October 1972. When the story broke that summer, reported Peters for Slate in 2012, Douglas was quick to plead his innocence with Burger, telling the chief justice that he was “upset and appalled” after “never breath[ing] a word” about Roe to “anyone outside the court.”

The second leak stemmed from a casual connection between Larry Hammond, a clerk for Justice Lewis Powell, and Time reporter David Beckwith. Acquaintances from law school, Hammond “confided in [Beckwith] that the Roe ruling was forthcoming,” according to Robenalt. Though Hammond offered the information “on background,” meaning it couldn’t be attributed to a specific source, and under the condition that it only be used after the court made its ruling, a delay in the announcement meant Time’s story landed on newsstands early.

The personal papers of Justice Harry A. Blackmun, who wrote the majority opinion for Roe, suggest that Burger delayed the ruling to avoid upstaging or embarrassing President Richard Nixon, whose second inauguration took place on January 20, 1973—two days before the decision was issued, noted Linda Greenhouse for the New York Times in 2004.

Robenalt, who interviewed Hammond while working on his book, writes that Burger immediately sent an “eyes only” letter to his fellow justices, calling on them to identify the source of the leak. The chief justice even proposed conducting lie-detector tests to ferret out the informant. Hammond, for his part, explained the situation to Powell and offered to resign—an offer the justice refused.

Despite Burger’s hawkish warnings, he ultimately accepted Hammond’s apology after hearing the full story. A grudging supporter of Roe, Burger was particularly incensed about Time’s framing of the ruling; per Robenalt, he’d gone “to pains to [emphasize] that the decision was not going to result in ‘abortion on demand.’” (Beckwith tells Time’s Olivia B. Waxman that Burger showed up at the magazine’s office a month or two after the ruling was issued, demanding that the reporter be fired for “the equivalent of espionage” or “ordered not to spy on the court.” The editors saw the situation differently and refused to accede to the justice’s demands.)

Hammond’s moment of indiscretion had other consequences for the Supreme Court, too. As Peters notes on Twitter, “The chief justice believed a law clerk was to blame, so he ordered all clerks not to speak to reporters. This resulted in what became known as the ‘20-second rule’: Any clerk caught talking to a reporter would be fired within 20 seconds.”

William Rehnquist and William Brennan were among the justices who pushed back against Burger’s “witch-hunt,” as journalist Bob Woodward described it in his 2011 book The Brethren: Inside the Supreme Court. Asked by his clerks if the chief intended to follow through with the threat of administering lie-detector tests, Rehnquist reportedly said, “It is still up in the air, but yes, the chief is insisting.” When Rehnquist’s clerks told him that some staffers would resign rather than undergo testing, the justice assured them that “the rest of us will prevail on [Burger]” to see reason.

Reflecting on the 2022 leak in an interview with NPR’s “Morning Edition,” legal affairs correspondent Nina Totenberg predicts a similar loss of trust among the current members of the court.

The leak “undermines everything the court stands for internally and institutionally—that they trust their law clerks, that they trust each other, that they work on things jointly,” she tells host A Martínez. “[T]hey won't be able to trust each other for a very long time. And they won’t be able to trust their law clerks in the same way, either.”

Peters perhaps summarized the situation best: Writing in Slate, he concluded, “Supreme Court leaks are rare, but they are hardly unprecedented. The court, just like our other public institutions, is made up of political animals. We shouldn’t be shocked when they act that way.”

Meilan Solly | | READ MORE

Meilan Solly is Smithsonian magazine's associate digital editor, history.