Last week, divulged a fresh trove of confidential internal memoranda between the justices. The documents allegedly show that Chief Justice John Roberts and his conservative colleagues have abused the Courts technical procedures to block the agenda of Democratic presidents and to favor Republicans. While this accusation can only succeed by ignoring the broader context of the Courts work, it heralds the latest progressive attack on the Court as a stabilizing institution in our national .
In February 2016, the Court temporarily from enforcing its “Clean Power Plan.” While the Court would eventually strike down the grand plan to rewire Americas energy grid when it reappeared in its Biden guise, in February 2016 the justices only issued an emergency stay to freeze the government plan before lower courts could rule.
The order, which prompted dissenting votes from the liberal justices, garnered little attention at the time but allegedly marked the birth of the “shadow docket.” Using this new procedure, the Court now intervenes quickly to issue emergency orders that can halt executive action before lower court review, which can effectively stop liberal presidents agendas in their tracks.
The New York Times alleges that secret memos show this 2016 decision came about not because of concerns over the Obama administrations abuse of power, but because of Chief Justice Roberts campaign against a liberal president. The report claims that Roberts “acted as a bulldozer in pushing to stop Mr. Obamas plan to address the global crisis” and that the memos show the chief justice to be “angry” and “irritated” with the government.
The Times report leaves out many important facts in order to portray the Court as using the shadow docket to pursue a partisan agenda. It claims the order represented a sharp break from Court practice, when in fact the justices regularly use this procedure to review capital executions and even granted such a stay in the Little Sisters of the Poors challenge to Obamacare just a few years earlier. The Times suggests that the conservative Roberts Court uses these stays to stop Democratic presidents. It does not provide examples of the Courts use of the same emergency stays to frustrate parts of President Trumps agenda as well. The Court, for example, has issued stays against Trumps use of the Alien Enemies Act to deport Venezuelans and against his dispatch of federal troops to inner cities.
The emergency stays do not represent an unprecedented weapon wielded by a conservative Court, but rather a response to regulations that seek to achieve their objectives before courts can intervene. In the Clean Power Plan case itself, the Obama administration hoped that its regulations would force the energy industry to decide on the massive investments required before the case could reach the Supreme Court.
But the Times report represents a greater affront than just a leak about procedural tussling within the Supreme Court. Last weeks leak of the Courts memos represents the third breach of the Courts confidential deliberations in the last four years. It began with the leak â for the first time in American history â of a draft Supreme Court in Dobbs in 2022, which overturned Roe v. Wade. It continued with a 2024 New York Times story based on documents and interviews that detailed the deliberations behind Trump v. United States, which held the former president immune from federal prosecution for his official acts.
These leaks represent the latest escalation in the use of political tactics against the Court. The Court has never had a draft opinion leak to the press; indeed, it is difficult to recall any leak of an opinion occurring at any federal court, ever. But leaking is all too common at the White House, cabinet agencies and Congress, even of the most sensitive, classified information. The Dobbs leak itself triggered harassment of the conservative justices at their homes and culminated
