Berl Falbaum
Much has been made about the “unprecedented” leak of a Supreme Court draft ruling which would reverse Roe v. Wade that established the constitutional right to abortion.
In almost hysterical terms, the journalistic community claims the leak has done irreparable damage to the court’s reputation as an apolitical body, one which restricts itself to the law and avoids all politics.
Shouted the headlines: This – a leak – has never happened before.
Politico, the news forum, which gets credit for the scoop, exclaimed: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”
Well, it did happen before and it happened – tighten your political seat belt – in the original Roe v. Wade decision, written in 1973 by a conservative, Harry A. Blackmun, a Nixon appointee. Not only did it happen in Roe, but it involved the court’s final decision, not a draft.
Yup, you read that right.
The following summary of the leak in Roe v. Wade comes from a May 6 column by New Yorker writer, Jane Mayer, and another column by James D. Robenalt, author of January 1973: Watergate, Roe v. Wade, Vietnam, and the Month that Changed America Forever.
Larry Hammond, a Supreme Court clerk for Justice Lewis Powell, told an acquaintance “on background” that the court would issue a pro-abortion ruling. The acquaintance, David Beckwith, happened to be a Time Magazine reporter who was not to write about the decision until after it was officially made public.
But, given an unexpected delay by the court, Beckwith’s story appeared in Time hours before the official release of the decision, infuriating Chief Justice Warren Burger. The story was published under the headline, “The Sexes: Abortion on Demand.”
The reaction at the time: Nothing. Other media outlets in that pre-Internet era, did not even follow up.
Beckwith apologized to Burger and while accepting the reporter’s mea culpa, the chief justice remained angry that the court’s commitment to secrecy had been violated.
Blackmun was angry as well because the leak diminished some of the drama, and he hoped to make his mark in American history with his majority opinion that was adopted by a 7-2 vote.
Mayer writes that Beckwith told her: “In my little incident, no one had any mal intent,” adding jokingly, “They just had the bad judgment to trust me.”
But that’s not the end of the story.
There was an additional leak in the Roe v. Wade case. Justice William O. Douglas, a liberal, was angry with Burger for what he considered unnecessary and purposeful delays. Burger reportedly opposed the ruling.
Douglas drafted a memo, complaining to his colleagues. That memo also was leaked and appeared in The Washington Post – on its front page.
Mayer quotes the historian, Douglas Brinkley, who is writing a book in which Douglas plays a major role, that Douglas may have leaked his own memo, stating, “Douglas leaked constantly to the press. It was his modus operandi.”
Then there are several books on the Supreme Court in which anonymous sources are used, i.e., justices, secretaries, clerks, etc.
So, all the hoopla about this unprecedented leak from the nation’s highest court seems, if not overblown, then, at least, deeply misrepresented. Indeed, “leaking” is a mainstay in every sector of our politics. A beat reporter who can’t brag to his bosses about having a stable of leakers might as well cover traffic accidents. “Anonymous sources” are a much-valued commodity – the more anonymous the better.
However, a story on how the mainstream media failed to report on the Roe v. Wade leak is much more fascinating and important, given our political environment.
Talk about a dereliction of duty. It is understandable that reporters covering politics might have missed a leak about some “minor” Supreme Court case but not one of such significance to the nation. Moreover, these were two leaks on the same constitutional issue affecting the lives of all Americans, and involving two landmark decisions.
It is hard to grasp that the entire media did not do any research on this issue. Why didn’t Politico check some history? Yes, they wanted to be first, but surely a little digging – a few hours -- would not have affected their exclusive. Why did the rest of the media commit the same journalistic sin? Where were (are) the reporters who cover the court?
Moreover, even though Mayer’s and Robenalt’s columns have appeared, more pieces on the uniqueness of the leak have been published.
Whoever can explain this unprofessional “oversight” would have a real scoop.
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Berl Falbaum is a veteran political journalist and author of 12 books, including “Not One Normal Day, Trumpedia: A Tome of Scandal, Lies, Corruption and Much More.”
