Is Unauthorized Dissemination of a Draft Supreme Court Opinion a Federal Crime?

"On May 2, 2022, it was first reported that a news organization had obtained a draft Supreme Court majority opinion in Dobbs v. Jackson Women’s Health Organization and received confirmation from “a person familiar with the court’s proceedings” in the case. The Court subsequently authenticated the draft opinion, and Chief Justice Roberts ordered an internal investigation. Beyond discussion of the substance of the draft opinion and its implications for the constitutional right recognized in Roe v. Wade—and setting aside potential employment or professional consequences for the person or persons who shared the draft—a number of commentators have questioned whether the act of providing the draft opinion to a media organization was a federal crime. Several Members of the House Oversight Committee wrote aletter to the Attorney General on May 3, 2022, calling for, among other things, a Department of Justice investigation and a briefing on “whether criminal charges are being considered against the individual or individuals responsible for this breach.”

Although federal law does prohibit the dissemination of certain kinds of government information—such as “classified” information related to national security—there does not appear to be a federal criminal statute expressly prohibiting unauthorized sharing of Supreme Court documents like draft opinions. Several laws that have been publicly referenced in connection with disclosure of non-public Supreme Court information could apply to particular disclosures depending on the underlying facts, which remain unclear in this instance, but there would be legal hurdles associated with seeking to use any of the referenced laws to prosecute the person or persons who shared the draft opinion in Dobbs. The provenance of the disclosure is unknown, so the laws addressed in this Legal Sidebar may or may not apply depending on the facts. Further developments in the Supreme Court marshal’s investigation could also make additional laws relevant (for instance, 18 U.S.C. § 1001, which prohibits knowingly and willfully making a materially false statement “in any matter within the jurisdiction of the . . . judicial branch of the Government of the United States,” among other things). As relevant to the disclosure itself, this Legal Sidebar will briefly describe three federal criminal provisions that have been cited by commentators in the context of apparently unauthorized Supreme Court information dissemination and identify some of the potential issues that application of each of those laws could raise..."
Supreme Court Opinions