The Washington PostDemocracy Dies in Darkness

The 1973 Roe v. Wade decision also was leaked to the press

Members of the Supreme Court on April 20, 1972. Front row, from left: Justices Potter Stewart and William O. Douglas; Chief Justice Warren E. Burger; Justices William J. Brennan Jr. and Byron R. White. Back row, from left: Justices Lewis F. Powell Jr., Thurgood Marshall, Harry A. Blackmun and William H. Rehnquist. (John Rous/AP)
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The apparent leak to Politico of an initial draft of a Supreme Court opinion overruling Roe v. Wade and Planned Parenthood v. Casey has been greeted with astonishment about not only the sweep of the ruling but also the fact that a draft opinion was leaked at all. Some commentators claimed that this was unprecedented in the history of the Supreme Court.

Neal Katyal, the former acting solicitor general, tweeted that if the Politico story is true, this is “the first major leak from the Supreme Court ever.” He called it the equivalent of the Pentagon Papers.

Supreme Court is ready to strike down Roe v. Wade, leaked draft shows

While it may be the case, as Politico states, that “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” it is not true that rulings have never been given to journalists before the announcement of the decision by the court. In fact, the result in Roe v. Wade itself was leaked by a Supreme Court clerk to a Time magazine reporter in January 1973. The issue of Time, with an article titled “The Sexes: Abortion on Demand,” appeared on newsstands hours before the decision was announced by Justice Harry Blackmun.

The Supreme Court clerk who leaked the story, Larry Hammond, told me about it when I interviewed him for my book “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.”

Hammond clerked for Justice Lewis Powell and played an important role in convincing Powell that the “viability” standard (when a fetus could live outside the womb) was the most supportable line to draw in determining when a state may not regulate a woman’s right to an abortion. Powell privately convinced Justice Harry A. Blackmun and ultimately a 7-to-2 majority to adopt the viability standard, and that has been at the heart of Roe and later Casey, which now appear to be on the verge of being reversed.

Hammond confided in an acquaintance he knew from the University of Texas School of Law that the Roe ruling was forthcoming. The acquaintance, a Time staff reporter named David Beckwith, was given the information “on background” and was supposed to write about it only once the opinion came down from the court. A slight delay in the ruling, however, resulted in an article that appeared in the issue of the magazine that hit newsstands a few hours before the opinion was read on Jan. 22, 1973.

The unknown Supreme Court clerk who single-handedly created the Roe v. Wade viability standard

Chief Justice Warren Burger was livid. The Supreme Court has always jealously guarded its opinions, and secrecy is critical to maintaining an evenhanded approach to dispensing justice. There are obvious and profound consequences if litigants and the public are tipped off to the result in a case before it has been formally announced and adopted.

Burger sent a frantic “eyes only” letter to all the justices demanding that the leaker be identified and punished. Burger even threatened to subject law clerks to lie-detector tests if no one was forthcoming.

Hammond opened Burger’s letter, as was his custom when Powell was out of town. (The justice was visiting a friend in Florida.) He immediately undertook to find Powell and tell him what happened and to offer his resignation. Powell would not hear of it and called Burger to tell him that Hammond had been double-crossed. A few minutes later, Hammond received a call from Burger’s secretary asking him to come to the chief’s chambers.

Burger had reason to be especially angry about the leak. He had reluctantly supported the decision in Roe, but he went to pains to write that the decision was not going to result in “abortion on demand” — which had been the headline of Beckwith’s story.

Jan. 22, 1973: The day that changed America

Despite this, Burger showed mercy to Hammond and gracefully accepted his apology, though he continued to fulminate about Beckwith and the Time story. Hammond survived as Powell’s clerk and even served an additional term for the justice before leaving the court to join the Watergate Special Prosecution Force.

The story of Hammond’s close call became legend to other clerks on the court at the time and has been passed down as a cautionary tale over time.

There is great danger in case results being leaked — all the more so when a full-blown draft is handed over to journalists, seemingly before the opinions, concurring and dissenting, have been finalized. The apparent majority opinion by Justice Samuel A. Alito Jr. in the Mississippi abortion case always held within it the makings of political dynamite — but now the premature announcement could even further the confusion and blowback that will surround any final opinions. It may prove to be a major blow to the court’s legitimacy and reputation.