Over at Slate, journalism prof Jonathan Peters reminds us that for all of last week's outrage and suprise regarding secret tales of Supreme Court deliberations, the nation's highest court has a long history of press leaks, including in cases such as Dred Scott, Roe v. Wade, and the convictions of Watergate felons.
The 1970s brought a wave of leaks at the Supreme Court. First, Justice William O. Douglas in June 1972 wrote a memo to his colleagues about Roe v. Wade. Somehow, it reached theWashington Post, which published a story about the memo and the court’s inner deliberations. Douglas, already on vacation at his summer home, was assumed to be the leaker. He wrote to Chief Justice Warren Burger that he was “upset and appalled” and had “never breathed a word” about the case to “anyone outside the Court.”
The leaks didn’t stop. In fact, Time published a story about the Roe v. Wade decision before the court announced it, reporting the outcome and the 7-2 vote. Infuriated, Burger demanded a meeting with Time’s editors, chastising them for scooping the court. The chief justice believed a law clerk was to blame, so he ordered all of the 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.
"The court," writes Peters, "just like our other public institutions, is made up of political animals. We shouldn’t be shocked when they act that way."