Chief Justice Roberts called the leak of the draft Dobbs opinion a "singular and egregious breach of that trust" and a "betray[al] of confidences." But over the past decade, Roberts has been silent in the face of other leaks. Why is the Politico story so "egregious." Indeed, the reaction to the Politico leak has been almost uniformly negative, even as other leaks generated a collective yawn. Why is this leak different from all other leaks?
I offer a taxonomy to measure Supreme Court leaks, with three primary variables: (1) timing, (2) details, (3) impact.
First, the timing of a leak matters. On one end of the spectrum, Joan Biskupic had a very successful streak of publishing leaks after the OT 2019 term completed. Way back in 1973, there was also a leak in Roe v. Wade, in which an issue of Time magazine dropped a few hours before the opinion came out. (The notion of people actually buying a magazine from newsstands seems so unfamiliar by today's standards.) On the other end of the spectrum, there were leaks while NFIB and Bostock were pending. Of course, those media outlets didn't say outright that they had a leak. Rather, they engaged in well-informed speculation about what was going on in the Court. Wink, wink, nod, nod. The Politico story was so unique because it was published two months before the term concluded, and expressly acknowledged there was a leak.
