The implications of the draft Roe opinion leaking to the press

Last night, Politico’s Josh Gerstein and Alexander Ward dropped a bombshell story in the least hyperbolic sense of that term. The pair obtained a draft majority opinion—written by Justice Samuel Alito based on a preliminary vote of the Supreme Court, and circulated among the other justices in February—that would strike down Roe v. Wade and, with it, the constitutionally protected right to an abortion, with Alito calling the precedent “egregiously wrong from the start.” Gerstein and Ward noted prominently in their article that deliberations around sensitive cases can be “fluid”—with justices haggling over drafts and, sometimes, changing their minds in the process—and that an official verdict has yet to be rendered. Still, the story immediately lit up the mediasphere.

So, too, did the fact that a draft opinion had leaked to the press ahead of the formal publication of a final decision. In their story, Gerstein and Ward wrote simply that they received the draft, as well as “other details supporting the authenticity of the document,” from “a person familiar with the court’s proceedings”; they also noted that the “appearances and timing of this draft are consistent with court practice” and published the whole thing on Politico’s website so that readers could judge for themselves, apparently creating a fresh version of the document to stop users from combing through metadata to identify the source. (Various journalists praised Politico for good digital hygiene, though Kim Zetter, a reporter who covers cybersecurity, argued that it was risky to publish the whole document in any form given that the court could theoretically have used more old-school tools—subtle tweaks to language, say—to trace provenance.) Matt Kaminski and Dafna Linzer, Politico’s top editors, also vouched for the draft’s authenticity in an internal memo to staff, citing an “extensive review process.”

ICYMI: The elitist coverage of the Correspondents’ Dinner and the coronavirus

Often, with a story of this magnitude, a rival outlet will quickly confirm (or, more rarely, cast doubt on) the authenticity of a document or other piece of sourcing, but Politico’s scoop, the courts reporter Erica Orden noted, appeared “utterly unmatchable”; the court, after all, has a reputation for impenetrability, particularly on matters as substantial as this. As major news organizations quickly gave the story top billing, several acknowledged in their copy that they had been unable to independently verify it. The Washington Post wrote that it had “no reason to believe that the detailed document Politico said it obtained was illegitimate”; staffers on Rachel Maddow’s show, on MSNBC, consulted with four former Supreme Court clerks who all said that the draft looked legitimate in form and style. As the night wore on, CNN became the first outlet to meaningfully advance the story, with sources telling the network that Chief Justice John Roberts does not favor overturning Roe in its entirety. (Politico had reported that his stance was unclear.) In statements to the press, a spokesperson for the court offered a curt “no comment.”

In an article accompanying his scoop, Gerstein wrote that the leak of the draft opinion was “highly unusual”—court-watchers, including historians and former clerks, told him that they could not recall it having happened before—though he also noted that “hints about deliberations” among justices have leaked out in the past, including in a Post article in 1972, when Roe was being decided. (Leaks that do not concern the court’s substantive decision-making are somewhat more common.) Observers including Jonathan Peters, a CJR contributor, noted that decisions have leaked to the press in the past—including, again, in the run-up to Roe, when a Time reporter got wind of the verdict before it was read out from the bench. The magazine only scooped the official announcement by a couple of hours, though Chief Justice Warren Burger was nonetheless furious, reportedly threatening clerks with lie detector tests administered by the FBI.

Ultimately, if the outlets that referred to the Alito leak as “unprecedented” were wrong to do so (and we would banish that word from journalism entirely), it at the very least marks an escalation in scotus-leak lore. As Gerstein told Maddow last night, court reporters have become accustomed to parsing justices’ hints and body language during oral arguments for clues as to how they might rule, as well as the “nuanced reading of editorials,” in publications such as the Wall Street Journal, that have sometimes seemed to be downstream of whispers emanating from the bench. Such instances, Gerstein noted, have never been accompanied by an actual written opinion. “I do think that this is groundbreaking,” he said. “It does take the court into new territory.”

Sign up for CJR's daily email

As news of the leak broke last night, pundits in both mainstream and right-wing media reacted with shock and no little consternation. scotusblog called the leak “the gravest, most unforgivable sin” in terms of eroding trust among the justices and their staff, while CNN’s Jeffrey Toobin said he didn’t know “how the institution is going to recover from it”; over on Fox, Laura Ingraham demanded that Roberts and/or the FBI (them again) search clerks’ electronic devices, while an on-air guest twice called the leak “an insurrection against the court.” In addition to the institutionalist fretting and unhinged insinuations of high criminality, news consumers were also treated to varying strains of speculation: about the impact the decision, if formalized, might have on the midterm elections, and about the motives of the leaker. The conventional wisdom seemed to hold that a court insider hopes public pressure will change at least one justice’s mind, though others warned that the publication of the draft opinion could lock in the verdict, while steering public debate away from the facts at issue and toward the subversion of court procedure.

To the latter point, numerous observers stressed that the fact of the leak doesn’t matter anywhere near as much as the substance of the draft ruling itself. This is clearly correct—there is an enormous amount at stake here for millions of Americans, especially those from marginalized groups, and this should be the focus of our coverage. The fact of the leak is itself consequential, though, and not just for journalists covering the court and their approach to their beat going forward. Unflinching explanations of the consequences of Alito’s draft opinion, and close scrutiny of his rationale, are essential; at the same time, we are still dealing with a draft here, and we should explain what that means, too. Even if the verdict doesn’t change from here, the precise wording of the majority opinion might, and that will still matter a great deal. We should also be crystal clear that Roe has not yet been officially overturned—a question of immediate significance for people seeking abortions in the near term.

The fact of the leak also speaks to an important story about the court as an institution, in ways that go beyond naive procedural pearl-clutching. To the extent that a draft opinion in a pending case becoming public represents a departure, it comes (as I’ve written before) at a broader moment of departure for the court’s practices and basic legitimacy, and the leak must be seen in that context. One key recent issue has been around transparency in the court’s decision-making, such as its expanded use of its “shadow docket”—including, last year, in a case that functionally gutted Roe in Texas—to issue verdicts without hearing public arguments or publishing a rationale. The shadow docket is not at issue this time. But the leak is shadowy in a more general sense. In a functioning democracy, the public wouldn’t learn of a seismic impending change to established rights via a mid-evening Politico scoop.

Below, more on Roe and the leak:

  • Lingering questions: Poynter’s Kelly McBride assessed the ethical implications of Politico publishing the leaked opinion, predicting that it will likely become “a case study for future generations of journalists.” “As long as the document holds up as authentic…Politico seems to be on solid ethical ground,” McBride writes, though she argues that editors should offer more information about how they reached the decision to publish. “When confronted with an unprecedented leak like this, news consumers are understandably skeptical in this era of mis- and disinformation. When journalists behind the work don’t signal that they have gone through an ethical process, consumers may conclude that ethics don’t matter to journalists.”
  • From the home front, I: In 2019, after the governor of Alabama signed a near-total ban on abortion in the state and other restrictive bills passed elsewhere, CJR’s Alexandria Neason wrote that reactive national news coverage created short-term confusion as to what was and wasn’t legal. (The Alabama bill did not take immediate effect, and Roe remained the law of the land.) Failing to emphasize these facts, Neason wrote, meant that residents in need of care may not have known they could still get it. A local bureau of Planned Parenthood “was so inundated with calls from people unsure whether the procedure was legal that they had to open an automated hotline to field calls.”
  • From the home front, II: A year ago, after the Supreme Court agreed to take the case from which Alito’s draft opinion has now stemmed, Kyle Pope, CJR’s editor and publisher, explored how we got here by speaking with Maria Clark, a Louisiana-based healthcare reporter with USA Today’s American South team, and Jessica Mason Pieklo, senior vice president and executive editor at Rewire News Group, on an episode of our podcast, The Kicker. You can listen back to it here.


Other notable stories:

ICYMI: 2022 is already the deadliest year for journalists in Mexico

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.

TOP IMAGE: A crowd of people gather outside the Supreme Court, Monday night, May 2, 2002 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter. The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided. (AP Photo/Alex Brandon)