No, Alito's draft opinion is not the first leaked Supreme Court decision

While leaks of Supreme Court votes are rare, they have happened. But past leaks were of decisions — never the full text of a draft opinion.

On May 2, Politico published the Supreme Court’s initial draft majority opinion on Dobbs v. Jackson Women’s Health Organization, a Mississippi case on abortion rights that the Supreme Court has not yet decided on. The opinion, as written, would reverse the 1973 Roe v. Wade decision that established protections for abortion rights in every state in the country, and allow states to enact laws widely banning abortions.

That’s had observers questioning whether a leak of a pending Supreme Court case’s decision has ever happened before. Many commentators and experts said in social media posts with tens of thousands of likes that the leak is “unprecedented.”

Latrelle and other viewers emailed VERIFY to ask if this is the first ever leak from the Supreme Court.

THE QUESTION

Is this the first time a Supreme Court decision has been leaked to the public?

THE SOURCES

THE ANSWER

This is false.

No, this is not the first time a Supreme Court decision has been leaked to the public, but it is the first time the full text of a draft opinion has been leaked. 

WHAT WE FOUND

The leak of Supreme Court Justice Samuel Alito’s majority opinion draft, which was written in February, suggests that the Supreme Court voted against maintaining the federal abortion rights protections established in Roe v. Wade. 

In a May 3 press release, the Supreme Court confirmed the authenticity of the draft and said it does not reflect a final decision by the court or the final position of any of the court’s members on the case’s issues. The final decision is set to come in June or July. 

There has never been a recorded instance where a Supreme Court opinion was leaked to the public before the court had released it. However, there have been rare instances in which Supreme Court votes or decisions were leaked ahead of the court’s announcement.

TIME published the original decision of Roe v. Wade in its weekly magazine hours ahead of the Supreme Court’s official announcement on Jan. 22, 1973. “Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land,” TIME’s article said. “Such laws, a majority of the Justices believe, represent an unconstitutional invasion of privacy that interferes with a woman's right to control her own body.”

According to a more recent article from TIME, the magazine’s story was supposed to publish after the decision came down, but it instead came out hours before the ruling because the Supreme Court delayed its release of the decision.

Jonathan Peters, Ph.D., a University of Georgia communications law professor and expert in Supreme Court leak history, referred in a Twitter thread to an 1852 case as one of the earliest instances of a Supreme Court decision being leaked.

The New York Daily Tribune reported the Supreme Court ruled in favor of Pennsylvania in Pennsylvania v. Wheeling and Belmont Bridge Company several days before the Supreme Court actually released its decision, according to a Library of Congress clipping of the newspaper. 

Credit: VERIFY
The Jan. 28, 1852 edition of the New York Daily Tribune included a single paragraph on page four that reported the outcome of a Supreme Court decision several days before its official release. (Screenshot via Library of Congress)

On June 15, 1986, ABC News Supreme Court correspondent Tim O’Brien reported the Supreme Court would strike down a Congressional budget law the next day. O’Brien reported that the decision would be 7-2, and that Chief Justice Warren Burger would write the opinion. The decision didn’t come on June 16, but when the Supreme Court released its decision the next month. The Washington Post wrote about the leak and noted in a July 8, 1986 article that O’Brien had nailed all the details except for the date.

What makes this leak of Alito’s opinion on Dobbs v. Jackson Women’s Health Organization so unprecedented, experts say, is that it’s a full draft of an opinion from early in the process when much is still subject to change.

“Leaking the outcome, and even a proposed vote tally, is really different than leaking these early versions of the opinion where you're getting the inside voice of the Supreme Court,” said Benjamin Barton, a law professor at the University of Tennessee Knoxville.

“It's not atypical for justices to join opinions, leave opinions, for majorities to crack — you'll get concurrences [to] grow,” Barton continued. “And again, this document appears to have come from February, so we have no idea where things stand by now.”

More from VERIFY: Yes, Congress could pass a federal law that supersedes a Supreme Court ruling

The VERIFY team works to separate fact from fiction so that you can understand what is true and false. Please consider subscribing to our daily newsletter, text alerts and our YouTube channel. You can also follow us on Snapchat, Twitter, Instagram, Facebook and TikTok. Learn More »

Follow Us

Want something VERIFIED?

Text: 202-410-8808

Related Stories