Supreme Court watchers have been calling the leak of a draft opinion in advance of the Court’s abortion decision “unthinkable” and “unprecedented.” Chief Justice John Roberts has ordered an internal investigation by the marshal of the Court, and former Attorney General Bill Barr has suggested that a criminal probe may be warranted. Fifty years ago, however, the Court sprang another leak—two, in fact—in connection with the original Roe v. Wade decision. A rookie writer named David Beckwith published a story in Time magazine asserting that the Court was about to legalize abortion, a few hours ahead of the official decision. Speaking by phone the other day from his home in Austin, Texas, Beckwith said, “In my little incident, no one had any mal intent.” He joked, “They just had the bad judgment to trust me.”
Beckwith, a law-school graduate, joined Time’s Washington bureau in 1971, just as the Supreme Court was about to hear arguments in Roe v. Wade. On July 4, 1972, he noticed what he called “one of the strangest stories I’d ever seen” on the front page of the Washington Post. It had no byline and quoted no sources by name. But it contained an extraordinary number of confidential details about a struggle inside the Supreme Court chambers over the right to abortion. The story revealed that, while a majority of the Justices clearly supported a constitutional right to abortion, Chief Justice Warren Burger, who opposed abortion rights, wanted to hold off announcing a decision until President Richard Nixon could fill two vacancies on the Court—which Burger hoped would change the outcome.
Although no one seemed to pick up on the Post’s account, published on a national holiday, Beckwith took notice. He decided to dive in and report out the story, interviewing more than a dozen Court insiders, including Justices and clerks.
A close reading of the Post story shows that it was leaked by someone with inside knowledge of the Court’s private deliberations. It revealed the date on which the Justices had met to discuss the case, and also disclosed that the Court’s reigning liberal, Justice William O. Douglas, was enraged by what he viewed as Burger’s delay tactics, which he saw as an attempt to subvert the outcome. Douglas circulated a memo describing the Chief Justice’s improper power plays to his fellow Justices and their clerks. Within days, its contents were on the front page of the Post.