The Supreme Court isn’t supposed to be like other institutions. It’s supposed to be something more, a place above partisan squabbling, insulated from the unseemly back and forth of politics. The court’s nine justices are the final arbiters of our biggest legal questions, and much of their work is supposed to be done behind closed doors. They hold oral arguments and release decisions—and remain a mystery to most people.
That’s what made CBS’s Jan Crawford’s story on July 1 so shocking. Crawford reported that Chief Justice John Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc. Her story cited “two sources with specific knowledge of the deliberations” among the justices, and it noted that Roberts’ “switch” was “known among law clerks, chambers’ aides and secretaries.”
The collective reaction of pundits and legal commentators seemed to be, gasp, “How could this happen? How could the Supreme Court leak?” Harvard Law School’s Jack Goldsmith had just argued that the court is typically “better at stopping leaks” than other government institutions. Time’s Adam Sorensen described Crawford’s story as a “once-in-a-lifetime scoop.” Robert Shrum, like many others, described the leaks as “unprecedented.” Meanwhile, Orin Kerr, a law professor at George Washington University, wrote on the legal blog The Volokh Conspiracy that “the leak is pretty incredible” and that he “can’t remember anything quite like” it.
No doubt the leak is incredible, and no doubt the justices are good at keeping secrets. But there is nothing unprecedented about the Supreme Court dishing on what happens behind the red curtain. The court has a long and colorful history of leaks that dates back to the mid-19th century. Just like last week, leaks have sprung in the past commenting on a decision soon after the justices released it. Inside accounts of the personal relationships among the justices have long been served up to journalists. Indeed, some court opinions have leaked even before the justices had a chance to announce them.
Consider the 1852 case Pennsylvania v. Wheeling and Belmont Bridge Company. Ten days before the court handed down its decision, the New York Tribune reported the outcome. Two years later, the bridge case returned to the court, and again the Tribune scooped the justices before they made their decision public. Later that year, the Tribune published a running account of the court's deliberations in Dred Scott. Historians have speculated that the leaks came from Justice John McLean, who authored the first bridge opinion before dissenting in the second one, as well as Dred Scott.
More recently, in 1968, New York Times reporter Fred Graham wrote a story about Justice Abe Fortas’ extrajudicial activities to support the Vietnam War, after a law clerk leaked the details to Graham. “The young man was outraged that Fortas was sitting on draft cases and writing opinions sending kids to jail,” Graham later told researchers. “This clerk knew from things going on around the courthouse that Abe Fortas was on the phone to Lyndon Johnson, and they were discussing bombing. It was outrageous.”
The 1970s brought a wave of leaks at the Supreme Court. First, Justice William O. Douglas in June 1972 wrote a memo to his colleagues about Roe v. Wade. Somehow, it reached the Washington Post, which published a story about the memo and the court’s inner deliberations. Douglas, already on vacation at his summer home, was assumed to be the leaker. He wrote to Chief Justice Warren Burger that he was “upset and appalled” and had “never breathed a word” about the case to “anyone outside the Court.”