The extraordinary publication of a U.S. Supreme Court draft opinion in a pending, exceptionally high-profile case has me considering leaks from California’s high court. I can think of two. Neither involved the disclosure of a draft opinion’s full text, just the bottom line of an impending decision. Both occurred in important cases in the 1970s. One did substantial institutional damage.

The less consequential leak was in People v. Anderson (1972) 6 Cal.3d 628 where the court struck down the state’s death penalty as violating the California Constitution. (See here and here.) The disclosure came just a day before the opinion’s filing, when a local television station reported what the justices were about to do. The station quoted a court clerk as saying only that a “momentous court decision” would be announced the next day.

The far more significant leak concerned People v. Tanner (1978) 151 Cal.Rptr. 299, vacated on rehearing, People v. Tanner (1979) 24 Cal.3d 514. The 4-3 opinion there concluded that a general statute gave judges the discretion to strike a gun-use charge that — under another statute (the “use a gun, go to prison” law) — would otherwise require incarceration. As it turned out, the decision did not come as a surprise.

The Tanner opinion didn’t issue until almost two months after an election at which Chief Justice Rose Bird was narrowly confirmed. On the eve of the vote, however, a news story broke that the opinion — which the article claimed would “reverse” the gun law — was ready to go, but was being held until the election was over. What’s more, the article cited two unnamed justices as its sources.

A biography of Justice Stanley Mosk said the article “quoting two unnamed Justices allegedly revealing the internal proceedings of a still pending case was like a bomb going off inside the Court’s hallowed chambers.” (Braitman & Uelmen, “Justice Stanley Most: A Life at the Center of California Politics and Justice.”) It led to a prolonged and divisive investigation by the Commission on Judicial Performance — an investigation requested by Chief Justice Bird herself — that ended without any charges, but left the court’s reputations with lasting bruises. (A book-length discussion of the Tanner episode is Stolz, “Judging Judges: The Investigation of Rose Bird and the California Supreme Court.”) [Update: Another book about Tanner is Medsger, “Framed: The New Right Attack on Chief Justice Rose Bird and the Courts.”]


Adam Liptak in the New York Times, “A [U.S.] Supreme Court in Disarray After an Extraordinary Breach.”

Craig Anderson in the Daily Journal, “[U.S.] Supreme Court opinions, discussions have leaked before.”