Politico did not reveal how it obtained the 98-page draft opinion, written by Justice Samuel A. Alito Jr. It said only that it received the draft from “a person familiar with the court’s proceedings” in the Mississippi case — spurring an immediate frenzy of speculation about who leaked the document, and why they did it, that was nearly as loud and as passionate as the policy debate over what the ruling would mean for millions of Americans.
Only about 40 people — the nine justices themselves and their clerks — would have had authorized access to Alito’s draft, which appears to have been circulating among them since February.
Politico also reported, citing a “person familiar with the court’s deliberations,” that four of the court’s other Republican-appointed justices had voted to join Alito in overturning Roe shortly after hearing arguments in the case in December, while the three Democratic-appointed justices were working on dissents and that it was unclear how Chief Justice John G. Roberts Jr. would vote.
The news organization would not detail how it confirmed the document was authentic or when it first received it. In a memo to staff after publication, Politico Editor in Chief Matt Kaminski and Executive Editor Dafna Linzer wrote that “after an extensive review process, we are confident of the authenticity of the draft” and defended their decision to publish it:
“The unprecedented view into the justices deliberations is plainly news of great public interest,” they wrote. “Our journalism speaks for itself, and that’s no different here.”
On Tuesday morning, Roberts confirmed the authenticity of the draft when he announced that he has launched an investigation into how it was leaked.
Kaminski and Linzer did not respond to requests for comment, and neither did Politico’s legal reporter, Josh Gerstein, who co-wrote the story with Alexander Ward, who typically covers the national security beat. A spokesman for Politico, Brad Dayspring, declined to provide further details, except to say an “extremely small group” of staff members worked on the story. Several Politico staffers said Monday night they had no idea the story was in the works until it was published.
The draft document was evidently so closely held that virtually every other news organization reporting on the story Monday night was compelled to rely entirely on Politico’s reporting and the copy of the opinion it posted on its website at 8:32 p.m. Scoops are usually matched quickly in Washington — as soon as one news organization breaks a story, reporters at rival publications will ask their own sources to independently confirm it for them. But independent verification seems to have been impossible in the case of the Alito draft.
As a result, the New York Times, Associated Press, CNN, NBC, ABC, Fox News, CNBC, the Los Angeles Times, USA Today and The Washington Post, among others, cited Politico’s reporting in their news stories about the draft.
While Supreme Court leaks are extremely rare, there have been occasional stories that revealed details of the justices’ private deliberations. And the original 1973 Roe decision was leaked to Time magazine by a clerk for Justice Lewis Powell, appearing on newsstands hours before the court announced its decision, which enraged Chief Justice Warren Burger.
Publication of the document immediately set off speculation about the leakers’ motives. Several TV commentators suggested those aligned with the court’s liberal minority may have been alarmed by the court’s apparent intent to strike down Roe, and leaked the draft to build public pressure on the majority to modify or even reverse its decision.
Alito’s draft appears to anticipate that its ruling will generate a harsh public backlash. But he suggested the court should ignore it.
“We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” he wrote. “We do not pretend to know how our political system or society will respond to today’s decision. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
Some expressed outrage over the disclosure of the document, calling it a gross breach of protocol at the court and an attempt to sow dissension within it.
On her Fox News program, host Laura Ingraham — a former clerk for Supreme Court Justice Clarence Thomas — called for federal law enforcement officials to require law clerks to turn over their electronic devices and answer questions about the leak. Legal scholar Jonathan Turley, a guest on the program, called the leak “the original sin of judicial ethics.” SCOTUSblog, a popular website known for its deep analysis of the court, said the leak would cause an “earthquake” in terms of “the destruction of trust among the Justices and staff.”
Founded in 2007, Politico pioneered a kind of fast-moving style of reporting that emphasized breaking news and small scoops about political campaigns, lobbying and official Washington. It has since branched out to longer-form journalism and broadened its commentary. But the Supreme Court story is by far the most consequential scoop Politico has landed in its 15 years.
It is among the few start-up news organizations in Washington to establish itself alongside “legacy” newspapers and broadcast sources; owner Robert L. Allbritton sold the publication last year to Axel Springer, the German media conglomerate, reportedly for about $1 billion.
Gerstein, a widely respected veteran of the legal beat, said in an interview on MSNBC Monday night that the publication was “very confident” that the document it published was genuine, though he declined to specify why.
In response, host Rachel Maddow told him, “You will always, in your entire life, be the reporter who broke this story, whatever else happens in your life, and everything else that you’ve done in the past.”