Premature release of court judgments

The SCOTUS leak is astonishing, but not unique.

On 2 May 2022, a 98-page draft of Associate Justice Samuel Alito’s opinion in the Supreme Court of the United States’s (SCOTUS) decision in Dobbs v. Jackson Women’s Health Organization was obtained and published by political journalism outlet, Politco.

Justice Alito’s opinion, said to be an opinion of the majority of the court, strikes down SCOTUS’s landmark 1973 decision in Roe v Wade 410 US 113 (which was re-affirmed in the court’s 1992 decision in Planned Parenthood v Casey 505 US 833).

Chief Justice John Roberts of the court has confirmed that the draft is authentic, but may not represent the court’s final decision on the case.

Reportedly, in the modern history of the court, no draft decision of the court has been disclosed publicly while a case was pending.

This is, suffice to say, an extraordinary turn of events, particularly on such a contentious issue.

Below are some examples where the details of judgments have been prematurely released, as well as an example where there was no premature release but the media frenzy over the court’s decision resulted in incorrect reporting that mislead (albeit only for a few minutes) the head of a sovereign state.

These examples do not involve a leak of a draft decision while a case is pending. But they do illustrate that premature release of the outcomes and reasoning in court decisions do occur.

Examples

Australia - Same-sex marriage

At approximately 12.15 pm on 12 December 2013, the High Court of Australia handed down its landmark decision overturning same-sex marriages in The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55.

But the High Court’s summary of the judgment was published on the High Court of Australia’s website between approximately 20 minutes to 2 hours before 12.15 pm.

The High Court’s summary of its judgment revealed the outcome of the court’s decision as well as its reasoning. So, visitors to the High Court’s website were able to get advance notice of the court’s decision and its reasoning before the parties to the proceedings and the Australian public.

United States - Obamacare

On 28 June 2012, SCOTUS handed down its landmark decision in National Federation of Independent Business v Sebelius 567 US 519 that upheld the US Congress’s power to enact most provisions of the Patient Protection and Affordable Care Act, commonly called “Obamacare”.

President Obama reportedly was watching a television featuring a split screen of four different television networks on the day of the court’s decision. The President saw graphics on the screen from the first two cable networks — CNN and Fox News — both of which announced, incorrectly, that the Supreme Court had struck down the individual mandate at the heart of Obamacare in its totality.

The President did not learn that CNN and Fox News — in their rush to report on the court’s decision — had got their reporting on SCOTUS’s decision wrong until the White House Counsel arrived in the White House some minutes later. The White House Counsel had learnt of the (correct) ruling from "a White House lawyer at the Supreme Court and from SCOTUSblog.com."

United Kingdom - BSkyB

On Wednesday 12 March 2014, the Supreme Court of the United Kingdom (UKSC) handed down its decision in R (BSkyB) v Commissioner of Police [2014] UKSC 17 rejecting an appeal of a lower court’s decision that a court cannot rely on secret government evidence to order that a media organisation (BSkyB, now known as Sky UK) disclose documents relevant to police investigation.

On Sunday 8 March 2014, the MailOnline (the website for the Daily Mail, a UK newspaper) reported that the UKSC had rejected the appeal.

The MailOnline’s reporting was correct.

The UKSC had distributed an advance copy of its decision to the parties on the Thursday 6 March 2014. This was in accordance with the court’s practice note (see paragraph 6.8.3) where the court explains “When, for example, judgment is given on a Wednesday morning, it is made available to counsel [for the parties] from 10.30 am on the previous Thursday morning.”

The purpose of the advance distribution of copies of the court’s judgments to the parties’ counsel is “to check the judgment for typographical errors and minor inaccuracies” (paragraph 6.8.4).

The court revealed that in this case one of the lawyers of the parties to the proceedings before the UKSC, in breach of the practice note, passed the advance copy of the judgment to someone outside the legal team, leading the publication of the outcome of the decision on the MailOnline.

The court’s practice note explains that the court may, on occasion, also distribute copies of its judgments in advance to “accredited members of the media” (paragraph 6.8.5) for the purpose of informing later reporting. But the contents of the judgment are subject to a “strict embargo” and are not for publication before the court has delivered the judgment (paragraph 6.8.5).