Leaking Judicial Drafts: Comparative Judicial Politics Behind Opinion Leaking

Constitutional and apex courts decide cases mostly through procedures shielded from public view. Judicial deliberations, coalition formation, and opinion drafting typically occur within closed chambers. Only majority or dissenting opinions are publicly released. Nevertheless, opinion leaks have been known to occur in several jurisdictions, often in politically salient cases. Judicial leaks seem to have policy consequences. In the U.S. Supreme Court, the 2022 Dobbs leak arguably altered the coalition formation that preceded the overruling of Roe v. Wade. In Poland, amidst an ongoing constitutional crisis, a leaked draft revealed the Constitutional Tribunal’s impending invalidation of court-curbing legislation adopted by PiS in 2015, sparking political retaliation. In Peru, as the Constitutional Court prepared to block the unconstitutional reelection of Fujimori in 1997, a leak exposed the institution to coordinated attacks from the executive and legislature, precipitating the impeachment of several magistrates and ultimately blocking the issuance of the judgment. Although recent scholarship, particularly focused on American judicial politics, has begun to examine the causes and consequences of the Dobbs leak, systematic comparative research on draft-leaking remains limited. This paper examines the conditions under which judicial actors are more likely to engage in draft leaking and the strategic objectives that judicially-originated leaks serve. It pays particular attention to the roles of allies of the individual judicial actors deciding to leak. Drawing on a comparative set of documented episodes, the paper distinguishes between several categories of leaking actors. In the case of judicial players, it argues that partisan appointment dynamics and high levels of political polarization substantially increase the incentives to leak, as they reduce the prospects for formal or informal sanctioning or future coordination expectations, thereby shifting the emphasis of judicial players from internal to external alliances. Subsequently, the paper develops a typology of the strategic purposes pursued through draft-leaking—namely, (i) strategic retaliation, (ii) policy entrenchment, (iii) policy sabotage, and (iv) partisan signaling, highlighting how these objectives are often pursued in coordination with or in anticipation of support from allies. It concludes that draft-leaking behavior is best understood as the product of interactions among categories of judicial actors, allied political or institutional supporters, the surrounding political environment, and the strategic goals that motivate the leak.