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The original Roe v. Wade decision was also leaked in 1973 and angered the chief justice so much he threatened staff with lie detector tests

May 3, 2022, 17:19 IST
Business Insider
Chief Justice Warren Burger pictured at the Supreme Court in 1986.Cynthia Johnson/Getty Images
  • The original 1973 Roe v. Wade decision was subject to leaks, according to legal historians.
  • The then-chief justice was furious when the news broke, one author wrote in The Washington Post.
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Washington, DC, is reeling from Monday's leak of a draft Supreme Court opinion that appears to show the court ready to overturn Roe v. Wade.

But it's not the first leak associated with the Supreme Court or the landmark abortion case: The original decision was also leaked five decades ago, infuriating the then-chief justice so much that he threatened clerks with lie detector tests.

In 1973, both Roe v. Wade's decision and some of its deliberations were leaked to Time magazine and The Washington Post, both of which published articles before the ruling was made public.

Then-Chief Justice Warren Burger was "livid" about the leak, and wrote to all justices demanding that the leaker be found, the lawyer and author James Robenalt wrote in The Washington Post.

He said that if nobody came forward he would demand lie detector tests for the court's clerks, per Robenalt's account in The Post.

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Robenalt is the author of "Roe v. Wade," a book about the history of that decision, in which he said he interviewed the clerk who leaked the information, Larry Hammond, who worked for then-Justice Lewis Powell.

Hammond had told the Time reporter about the forthcoming ruling on background, only for publication after the announcement had been made — but a delay in the Supreme Court's process meant that the Time article came out first, Robenalt wrote.

Hammond offered his resignation to Powell, but was refused, Robenalt wrote in The Post.

Details of the court's internal deliberations on Roe v. Wade had already leaked in late 1972, according to Jonathan Peters, a media law professor at the University of Georgia's Grady College of Journalism and Mass Communication.

Peters wrote in a Twitter thread that an unknown person leaked a memo sent by Justice William O. Douglas, which was published in a Washington Post article about the court's deliberations.

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That, too, infuriated Burger, who demanded that no clerk speak to reporters — which resulted in what was called the "20-second rule," Peters wrote. That meant that no clerk's job would survive longer than 20 seconds if they were caught talking to the press, Peters wrote.

Leaks from the Supreme Court are nonetheless rare. CBS News, which did not cite named sources, reported that a full-scale FBI investigation into the source of the leak is expected.

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