Leaks from the Supreme Court are rare. Surprisingly, the 1972 Roe decision was leaked. The following quotes are from Woodward and Armstrong’s 1979 book: The Brethren.
The day of the scheduled abortion decision the Chief sat in his chambers reading the latest edition of “Time” magazine. “Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land,” an article said. The abortion decision had been leaked.
Burger drafted an “Eyes Only” letter to the other Justices. He wanted each Justice to question his law clerks. The responsible person must be found and fired. Burger intended to call in the F.B.I to administer lie-detector tests if necessary.
Brennan summoned his clerks and read them the Chief’s letter. It was another example, he said, of the Chief usurping the authority each Justice had over his own clerks. “No one will question my law clerks but me,” Brennen said. Then in a softer voice, he added, “And I have no questions.“
Marshall asked what his clerks knew about the incident. When he was assured they knew nothing, he told them to forget it.
Douglas treated the letter as he had treated a request from the Chief the previous term that all clerks be instructed to wear coats in the hallways. He ignored it.
Powell was out of town, so one of his clerks opened the Chief’s letter. The clerk had talked to the “Time” reporter, David Beckwith, trying to give him some guidance so he could write and intelligent story when the decision came down. But the delay in announcing the decision had apparently left “Time” with a scoop, if only for half a day.
The clerk called Powell and told him about the Chief’s letter and his own terrible mistake in talking to Beckwith. He volunteered to resign.
That would not be necessary, Powell said. But a personal explanation would have to be given to the Chief.
Chief Justice Roberts said the current leak will be investigated. I wonder how the Justices will react and what, if any, will result. The 1972 leak wasn’t motivated by dissatisfaction with the Court’s opinion, but the motivation for the 2022 leak may have been.
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