Supreme Court abortion opinion not first SCOTUS decision leak

In May, a draft Supreme Court decision overthrowing Roe v. calf leaked. This was not the first time a Supreme Court decision had become public.

Update June 24, 2022: Roe v. Wade was overturned by the Supreme Court on June 24. This story has been updated to reflect the Supreme Court’s final decision.

On June 24, the Supreme Court ruled in favor of Mississippi’s anti-abortion law in Dobbs v. Jackson Women’s Health Organization. The decision means that the Roe v. Wade’s 1973 law that legalized abortion nationwide.

In early May, a leaked copy of a draft decision by Supreme Court Justice Samuel Alito indicated the court would vote to repeal the decades-old abortion law.

When the leak was published, many commentators and experts said cross social media that the leak was “unprecedented”.

Several viewers also emailed VERIFY to ask if this was the first ever Supreme Court leak.

THE QUESTION

Was this the first time a Supreme Court decision was made public?

THE SOURCES

THE ANSWER

That's wrong.

No, this was not the first time a Supreme Court decision had become public, but it was the first time the full text of a draft advisory opinion had been leaked.

WHAT WE FOUND

Supreme Court Justice Samuel Alito’s leaked majority vote, written in February, suggested the Supreme Court would oppose retaining the Roe v. Wade voted for federal protections for abortion rights.

In a press release May 3, the Supreme Court upheld the draft’s authenticity, saying it did not reflect a final decision by the court, nor the final position of any of the court members on the issues of the case. The final decision was made on April 24.

There has never been a recorded case in which a Supreme Court ruling was leaked to the public before the court had made it public. However, there have been rare instances where Supreme Court votes or decisions were leaked prior to the court’s announcement.

TIME published Roe v. Wade in her weekly magazine hours before the Supreme Court’s official announcement on Jan. 22, 1973. “Last week, TIME learned that the Supreme Court decided to strike down nearly every anti-abortion law in the country,” TIME’s article said. “A majority of judges believe such laws constitute an unconstitutional invasion of privacy that interferes with a woman’s right to control her own body.”

According to a recent TIME article, the magazine’s story was supposed to be published after the decision was made, but it instead came out hours before the verdict because the Supreme Court delayed publishing the decision.

Jonathan Peters, Ph.D., professor of communications law at the University of Georgia and expert on Supreme Court leak history, mentioned in a Twitter thread to an 1852 case as one of the earliest cases of a leaked Supreme Court decision.

The New York Daily Tribune reported that the Supreme Court ruled several days before actually publishing its decision in favor of Pennsylvania in Pennsylvania v. Wheeling and Belmont Bridge Company, according to a newspaper clipping from the Library of Congress.

On June 15, 1986, ABC News Supreme Court correspondent Tim O’Brien reported that the Supreme Court would strike out a Congressional budget bill the next day. O’Brien reported that the decision would be 7-2 and that Chief Justice Warren Burger would write the opinion. The decision was not made on June 16, but when the Supreme Court released its decision the next month. The Washington Post wrote about the leak, noting in a July 8, 1986 article that O’Brien had nailed all the details except the date.

What made the leak of Alito’s opinion on Dobbs v. Jackson Women’s Health Organization unprecedented, experts say, was that it was a complete draft opinion early in the process, when much could have been changed.

“Revealing the outcome and even a proposed vote count is really different than revealing those early versions of the opinion where you get the Supreme Court’s inside vote,” said Benjamin Barton, a law professor at the University of Tennessee Knoxville.

“It’s not uncharacteristic of judges joining opinions, leaving opinions, majorities breaking — you’ll get consensus [to] grow,” continued Barton. “And again, this document seems to have come from February, so we have no idea where things are now.”

More from VERIFY: Yes, Congress could pass federal legislation replacing a Supreme Court ruling

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