It is totally unprecedented for a draft opinion to be leaked.
Is it unprecedented, or have draft SCOTUS opinions been leaked before?
Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.Sign up to join this community
Politico, who published this most recent leak, also has an article about prior SOCTUS leaks. Most of them were very minor or speculative, along the lines of the following two examples given:
In 1972, while Roe was under deliberation, an unbylined Washington Post story detailed the justices’ internal wrangling on that subject. The Post story — which appeared days after the justices ordered a second round of arguments in the case — was attributed to anonymous informed sources and did not quote any draft opinions or internal memoranda, but described them in significant detail.
In 1979, ABC News Supreme Court correspondent Tim O’Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court’s rulings was transferred to a different division. The staffer denied leaking any information.
A Business Insider article attributes the original Roe leak to a memo written by Justice William Douglas.
The Politico article continues listing a few other examples of a similar vein, where convenient coincidences suggested someone had an inside line on how the court was leaning: a passionate Senate speech here, an article predicting case decisions there, etc. When a leak is strongly suspected, the fingers are usually pointed at one or more of the court's clerks. The aforementioned Business Insider article also mentions that a clerk leaked information to Vanity Fair about Bush v. Gore.
Politico does mention the following as a more substantive example:
The gravest violations of Supreme Court confidentiality came just over a century ago and led to a law clerk being accused of leaking the outcome of cases to Wall Street traders so he and they could turn a quick profit.
The Justice Department fingered Ashton Embry, a longtime clerk to Justice Joseph McKenna, with being the source of leaks in business-related cases handed down in 1919 related to a wartime ban on liquor distilling and so-called patents allowing railroads to use particular lands.
The case suffered a number of setbacks, including a lack of any insider trading laws at the time and a disappearing witness, and ultimately Embry was never convicted of anything, or even brought to trial.
And it ends with an extremely recent example from a few months ago:
During oral arguments on a Trump-era immigration policy this February, Justice Stephen Breyer mentioned that red states’ claim of standing to defend the policy was “pretty similar to what we had just allowed” in a case involving who could defend a Kentucky abortion statute. But the high court had not yet ruled in the Kentucky case. It did so eight days later, ruling 8-1, as Breyer and many less-informed others had predicted.
A full leak of a decision does not appear to have occurred before now. Leaks that appear to have been based in substantial part on (draft) opinions do appear to have occurred before, just not as a complete document. But insofar as the Embry incident may have resulted in actual and intentional profiteering off of leaked information it stands as a rather serious and consequential breach.
There have been several cases where the outcome of the case appeared to leak before publication, but I believe it is correct that the actual written decision has never leaked before.