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The 'Roe v. Wade' leak has drawn attention to how journalists cover the Supreme Court


The Supreme Court leak that has galvanized the nation has also focused attention on how journalists cover the country's highest court. And it casts light on the Supreme Court's historic resistance to public scrutiny.

NPR media correspondent David Folkenflik joins us now. Hey, David.


FLORIDO: So what do we know about how Politico broke this story?

FOLKENFLIK: Well, we sure don't know much about how Josh Gerstein and Alexander Ward broke the story for Politico last night. There's been a lot of speculation as to the source of it. They cited a person with knowledge. Many conservatives took to Twitter in airwaves to denounce the leak and claimed it came from, obviously, a clerk from a liberal justice or even perhaps one of the liberal justices, perhaps Justice Sonia Sotomayor. And the idea would be that they wanted to stir protest and action by congressional Democrats.

Then you saw this other pushback online, claiming conservatives might be trying to leak this to lock right-of-center justices in place supporting what had been proposed. Editors simply cited what they called an extensive review process and said that they're confident of the authenticity of the draft.

FLORIDO: Well, people have been calling this leak unprecedented. But just how unusual is this?

FOLKENFLIK: Well, let's call it rare but not unique. And let's scroll a little bit back in history. Go back in this case, say, to 1857 - the Dred Scott decision, an infamous one and a terrible one, a blot on the Supreme Court's legacy. It held that enslaved people seeking their liberty could be legally pursued and recaptured by those who had owned them in states where slavery had actually been outlawed. That leaked out to the New York Tribune.

More recently, CBS revealed a key justice's thinking a few days before the Pentagon Papers case was decided in 1971. That was, of course, itself a landmark case about leaking. In 1977, our own Nina Totenberg here at NPR reported the court was ruling on a key Watergate case ahead of its public release and what that ruling would be.

And there have been several leaks since in publications and in a slew of books. What's different about this case was that it was a leak of a full draft of what has been proposed as an actual ruling this far ahead of its release, which is expected perhaps in June.

FLORIDO: And this leak is being called an incredible breach of the court's deliberations. Chief Justice John Roberts said today that it will shatter the public's trust in the court. Why is that?

FOLKENFLIK: Well, justices have argued over the decades - and from both parties - that they have to operate effectively in private. And this draft is considered a work in progress; that is it's an attempt to win support from other justices, as well as a refinement of the thinking going into the ultimate decision and ruling itself. As Politico pointed out, this decision not only could change a lot, but the majority could swing in an altogether different direction or a modified one.

The court has always sought, I think, not only secrecy, but this idea of grandeur and inscrutability, almost like the Vatican. The court has been so secretive that only since COVID have they routinely shared audiotapes of arguments. And the audio of decisions are still not released until months after the fact, and there's no video allowed in.

FLORIDO: Well, Politico seems, clearly, to have rejected this logic that the court's work is best done in private. Why is that?

FOLKENFLIK: Well, editors cited what they called a great public interest. And it's hard to think of issues that are - have created more interest and more divisiveness in American social life than abortion. But let's also pull back a little bit. The Supreme Court is a branch of government. All branches of government - in federal government - deserve journalistic accountability.

If you think about Justice Clarence Thomas, he brushed off reports about his wife's links to the January 6 protests and to the siege of the Capitol. His allies have called that off-limits, and Thomas has refused to recuse himself from cases involving that day.

I'd say the Supreme Court should expect this form of journalistic accountability over time, as people consider it to have become more politicized. And they should buckle up for more scrutiny, not less, especially on issues this charged.

FLORIDO: That's NPR's media correspondent David Folkenflik. Thanks, David.

FOLKENFLIK: You bet. Transcript provided by NPR, Copyright NPR.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.