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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region Forums"The Court does occasionally leak, and it has leaked before about Roe v. Wade."
@jonathanwpeters
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speak easy
(9,257 posts)Leaked far and wide for comment.
NCjack
(10,279 posts)do it in secrecy. It is our business, and we want to know so that we can prepared to react to it in elections.
former9thward
(32,016 posts)Where the real work gets done? Nope. You don't. They are secret. All we see is committee hearings where people showboat for the cameras and no legislation is actually written.
Do we see the meetings in the Oval office and elsewhere in the White House where public policy is being made? Nope. Do you demand that?
All decisions by the SC are public policy by definition. They are not going to do it public and shouldn't. The real world does not operate that way.
NCjack
(10,279 posts)run on a platform of intentions. The leaks on their work flow like water passing through a sieve. And, they answer to the public on the bills they vote on.
A lot of the work of the Supreme Court should be private. But, when they make public policy, we should know what they are doing so we can prepare our response in the elections -- in which they do not run.
CousinIT
(9,245 posts)Share far and wide with the MAGA pearl clutchers.
https://unrollthread.com/t/1521309806430236672/
It's remarkable, the leak of what appears to be an initial draft majority opinion. SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations. But the Court does occasionally leak, and it has leaked before about Roe v. Wade. 1/x
Its recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release.
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 deliberations in Dred Scott.
Historians have speculated that these 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 Fortass extrajudicial activities to support the Vietnam War, after a law clerk leaked the details to Graham.
The 1970s brought a wave of leaks. First, Justice 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 Courts inner deliberations.
Then, Time magazine published a story about Roe v. Wade before the court announced it, reporting the outcome and the vote. Infuriated, Burger demanded a meeting with Times editors, chastising them for scooping the court.
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.
In 1977, NPR penetrated the justices conference by reporting that they had voted 5-3 not to review the convictions of three defendants in the Watergate cover-up cases.
The story, obtained by Nina Totenberg and confirmed by the New York Times, also reported that Burger had delayed the announcement of that decision so he could try to recruit the fourth vote necessary to review the convictions.
A couple years later, Burger was still fighting leaks. In 1979, he reassigned a typesetter at the Courts printing office after concluding that the typesetter had leaked nonpublic information to ABC correspondent Tim OBrien.
Not long before, OBrien had reported in advance the outcome of a case involving the right of courts to question reporters about their thoughts during the editorial process. OBrien then broke another story in 1986, when he scooped the justices on a decision re: budget balancing.
OBrien reported that on a particular day the Court would strike down a key part of a law. He was right about the outcome but not the day. Years later, a UPI reporter said Burger intentionally delayed the decision: Burger was ticked off and just wanted to stick it to...OBrien.
Other leaks have been more retrospective. In 2004, for example, a group of law clerks from the 2000 term leaked to Vanity Fair the details of the secret deliberations in Bush v. Gore.
And then, of course, there are the books: The Brethren, by Bob Woodward and Scott Armstrong; Closed Chambers, by Edward Lazarus; Sorcerers Apprentices, by Artemus Ward and David Weiden; Supreme Conflict, by Jan Crawford; The Nine, by Jeffrey Toobin. Etc.
Relying on sources inside the Court, each book in its own way pulls back the curtain and invites you to explore life, politics, and conflict at the Court.
Even more recently, CBSs Jan Crawford reported in 2012 that Chief Justice Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the courts liberal bloc.
All of which is to say: Supreme Court leaks are rare and remarkable, but they are not unprecedented. I've done some research on this, and I'm just sharing for anyone who might be interested in this wider context. /end
msfiddlestix
(7,282 posts)Fascinating read.. I'm inclined to search out for these publications, particularly Vanity Fair article which I missed at the time, along with others mentioned here.
KS Toronado
(17,247 posts)CousinIT
(9,245 posts)msfiddlestix
(7,282 posts)MerryBlooms
(11,770 posts)LetMyPeopleVote
(145,291 posts)There have been no doubt other drafts. There is some speculation that a conservative released this draft to try to keep Roberts from peeling off a vote for a more moderate opinion
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https://www.washingtonpost.com/politics/2022/05/07/supreme-court-abortion-roe-roberts-alito/
It is another signal that the 67-year-old Roberts, hailed by scholars just a few years ago as one of the most powerful chief justices in history, is not in control of the process as the court readies its most influential decision in decades.
There is also reason to believe Roberts has not given up. Many who know him well and have watched his maneuvering of the court through other issues are certain he is still preparing his own opinion in hopes he might draw at least one of the courts newest conservatives to his side. Such an outcome might save the 1973 ruling on Roe and the subsequent affirming 1992 decision, Planned Parenthood v. Casey, while severely limiting their protections.....
Roberts seemed to get no takers for a compromise that would erase the clear rule that Roe and Casey share, which is that states may not forbid abortions before viability, the point at which a fetus would survive outside the womb, usually 22 to 24 weeks.
Most observers of the court believe Roberts is still promoting a decision that would remove the viability line but otherwise keep Roe and Casey intact. Both liberals and conservatives are skeptical it can be done.
Right now it appears that the leaks are from a conservative who wants to keep five votes for Alito's radical opinion
MerryBlooms
(11,770 posts)former9thward
(32,016 posts)When has a draft leaked before?
mahatmakanejeeves
(57,464 posts)had been leaked before. Not of Roe v. Wade, and not of Dobbs, before this one. Rather, he said that there had been previous leaks from the Supreme Court, including one regarding Roe v. Wade, of a memo written by William O. Douglas.
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