Commentary: When the chief justice himself was the Supreme Court leak

Jeffrey Boutwell, The Baltimore Sun on

Published in Political News

Six months of investigation, interviews with 97 employees, and meticulous forensic examination of computers and cellphones have failed to identify the person who, in May 2022, leaked a draft opinion in a Supreme Court case that would ultimately overturn Roe v. Wade and a woman’s constitutional right to an abortion.

At the time, Chief Justice John G. Roberts Jr. called the breach “a singular and egregious” violation of traditional court confidentiality. Commentators and justices themselves warned of the court’s integrity being sullied and America’s already fractured politics being further polarized.

Yet, while the breach in the case of Dobbs v. Jackson Women’s Health Organization may have been egregious, it was hardly singular. There have been instances in the court’s history where word leaked of upcoming rulings, in one case involving the chief justice of the Supreme Court himself.

In February 1870, in a case that was equally sensitive, it was Chief Justice Salmon Chase who leaked word of an impending court decision. And he did so to a Cabinet member of President Ulysses S. Grant under circumstances that, if done today, would certainly result in Chase’s impeachment and possible removal.

The story involves the Legal Tender Act of 1862 and the constitutionality of greenbacks, the paper currency introduced that year to help finance the Union military effort in the Civil War.

Salmon Chase was Abraham Lincoln’s Secretary of the Treasury, and though doubtful about the federal government’s authority to issue paper currency that wasn’t backed by gold or silver, he supported the decision as a necessary wartime measure. Helping Chase was George S. Boutwell, the country’s first Revenue Commissioner, responsible for collecting the income taxes and tariffs that would pay for the uniforms, muskets, and supplies necessary to defeat the Confederacy.

In 1864, Lincoln appointed Salmon Chase to be Chief Justice, in part believing (and hoping) that Chase would uphold the constitutionality of greenbacks if the issue came before the Supreme Court. In making his choice, Lincoln uttered a statement that is still quoted today regarding the impropriety of asking a Supreme Court nominee in advance how they might decide a particular issue. In conversation with Boutwell, Lincoln acknowledged that a president “cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore, we must take a man whose opinions are known.”

As it turned out, Abraham Lincoln was correct not to press Chase for any future decision he might make on greenbacks, but wrong about how Chase would ultimately vote on the issue. In February 1870, some years after Lincoln’s death, Chase spoke for the five-to-three majority in Hepburn v. Griswold in declaring greenbacks invalid for the settling of debts, at least those incurred prior to 1862, meaning they would have to be paid in gold or silver.

Ironically, it was George Boutwell who now occupied Chase’s old position as Secretary of the Treasury and who would have the task of managing an American economy where greenbacks were no longer fully backed by the federal government.


Two weeks before the court’s decision was announced, Chief Justice Chase leaked word of the news to Treasury Secretary Boutwell. Fearing turmoil in the gold market from declaring greenbacks invalid, Chase warned Boutwell “of serious financial difficulties” that might arise from banks and other creditors starting a gold panic if greenbacks were no longer valid for paying off debts. Boutwell, who fully supported the constitutionality of greenbacks, disagreed, but kept the news secret.

It was a good thing he did. Given the aura of corruption already surrounding the Grant presidency, a Treasury Secretary less honest than George Boutwell would have ignited the mother of all scandals if he’d sought to profit by financial information given him by the chief justice of the Supreme Court.

Salmon Chase escaped censure for having violated Supreme Court norms of secrecy, but he couldn’t avoid his decision on greenbacks being overturned. A year later, after Ulysses Grant had the opportunity to appoint two new Justices, Chase was in the minority when the court ruled in Knox v. Lee that “paper money was a constitutional means of carrying out other specific powers of Congress.” With his greenbacks decision overturned, Chase castigated Boutwell, as a member of Grant’s Cabinet, for agreeing “to the appointment of judges to overrule me.”

One hundred and fifty years later, the validity of America’s greenbacks is a settled issue. Some fifty years after Roe v. Wade was decided, the incendiary issue of abortion rights is anything but, at least in the court of public opinion.



Jeffrey Boutwell is the author of “Redeeming America’s Promise: George S. Boutwell and the Politics of Race, Money, and Power,” to be published by W.W. Norton in spring 2024. He is a distant cousin of George Boutwell and lives in Columbia, Maryland.


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