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Abortion opinion leak unprecedented but not a Supreme Court first

Experts said the leak of a draft opinion that would overturn Roe v. Wade is likely to lead to "more distrust" on the high court.
Demonstrators protest Tuesday outside the Supreme Court in Washington.Valerie Plesch for NBC News

The Supreme Court has been vexed by leaks in the past, but Monday's disclosure of a majority draft opinion that would overturn Roe v. Wade dwarfs any that have come before, experts said.

"Basically what we're facing right now is totally unprecedented, and it's going to have political repercussions that are pretty severe," Peter Irons, the author of "A People's History of the Supreme Court," said of Politico's publication of the 98-page draft ruling by Justice Samuel Alito. "I think there will be a lot more distrust on the court."

In a statement Tuesday, the Supreme Court acknowledged that the document was authentic but said "it does not represent a decision by the Court or the final position of any member on the issues in the case."

Chief Justice John Roberts called the leak a "betrayal."

"This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," he said in a statement. He ordered an investigation into the source of the leak.

Jonathan Peters, a media law professor at the University of Georgia, noted that the high court has suffered from occasional leak problems since at least 1852.

That's when the New York Tribune published the outcome of a case called Pennsylvania v. Wheeling and Belmont Bridge Company 10 days before the ruling was issued.

"Two years later, the bridge case returned to the Court, and again the Tribune scooped the justices before they made their decision public," Peters tweeted.

The same year, Peters said, the paper also "published a running account of the deliberations" the court was holding behind the scenes in the notorious Dred Scott case, which ultimately held that people of African descent couldn't be U.S. citizens.

Peters said in an interview that historians believe the leaker in those cases was one of the justices, John McLean. At the time, the judges "were really interested in what the press said about them" and "were frequently trying to shape the coverage of them and the institution," Peters said.

In 1919, the Justice Department accused a Supreme Court employee named Ashton Embry of leaking decisions. Embry "was a law clerk to Justice Joseph McKenna and started leaking the outcome of cases to Wall Street traders" so Embry and the traders could turn a quick profit when the cases were announced, Peters said.

"Eventually he was criminally investigated and prosecuted," but the case predated insider trading laws, and "the charges didn’t end up sticking," Peters said. Embry went on to become a full-time baker.

A law clerk was also responsible for Time magazine's scoop on the Roe v. Wade ruling in 1973 — one of a pair of major leaks in the original case that is at the heart of the draft ruling made public this week, Peters noted.

The first was in 1972, when The Washington Post got hold of a memo Justice William Douglas had written to his colleagues about the case and used it in a story about the court's private deliberations.

Then, in January 1973, Time ran its story about the outcome of the case — even though the ruling had yet to be issued. Chief Justice Warren Burger "was infuriated," Peters said.

He demanded a meeting with Time's editors and declared a "20-second rule" for the court's law clerks — meaning "any clerk talking to a reporter would be fired within 20 seconds," Peters said.

While the source of the first leak was never uncovered, Larry Hammond, a law clerk to Justice Lewis Powell, acknowledged being the inadvertent source for the Time exclusive. Hammond told author James Robenalt that he'd confirmed the ruling to an acquaintance who wrote for the magazine, with an agreement that the magazine couldn't run the story until after the ruling was officially announced.

The announcement wound up being delayed for a few hours, accidentally paving the way for Time to have an exclusive. In a Washington Post op-ed published Monday night, Robenalt said Hammond came clean to Powell and Burger about what had happened and offered to resign.

Burger and Powell accepted Hammond's apology but not his resignation, Robenalt said.

While there haven't been any known leaks of draft majority opinions, Peters said there was a dissent in a sexual discrimination case that was accidentally sent to a United Press International reporter in 1981. The wire agency wound up not running a story about the filing because it couldn't confirm its authenticity, Peters said.

Irons, the author, who is a political science professor emeritus at the University of California, San Diego, said that with the current leak, the pool of suspects could be fairly large — each of the nine justices has four law clerks, and other court staffers would have access to draft opinions, as well.

“They pass around drafts of rulings, concurring opinions, dissenting opinions — a lot of people get to see them,” Irons said. “The net is pretty wide.”

If the leaker isn't found, it could sow more distrust among the justices, as well as discussion "about who gets to see these decisions or whether there should be a change in procedures, which would be extremely difficult to do," Irons said. "To make it leak-proof — it's almost impossible."