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221. Chief Justice Roberts and the Clean Power Plan
Remarkable reporting from the New York Times provides a peek behind the curtain of the February 2016 rulings that ushered in the modern emergency docket. And what it reveals is pretty discouraging.
Welcome back to “One First,” a newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.
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Back in February, I wrote about the tenth anniversary of the Supreme Court’s unsigned, unexplained February 2016 rulings blocking President Obama’s “Clean Power Plan,” and how they ushered in what might be called “the modern emergency docket.” In my earlier post, I raised a series of questions about what had led the Court to do something that, in 2016, was completely unprecedented (blocking an executive branch program then under review in the lower courts), and whether the justices had any idea of the Pandora’s Box they were opening. As I wrote, “because the Court didn’t write then, and hasn’t explained itself since, we’ll never know (at least, until our grandkids can read the justices’ internal papers from that time period).”
It turns out, thanks to some truly remarkable reporting from Jodi Kantor and Adam Liptak for the New York Times, that we didn’t have to wait quite that long. On Saturday, Kantor and Liptak published 16 pages of (leaked) internal memoranda from six of the justices providing a window into how and why the Court did what it did on February 9, 2016. And the memos are, at least to me, a remarkable combination of eye-opening and sadly unsurprising. As I explain below, I think there are at least five significant takeaways from these materials—none of which paint the Court in an especially flattering light. And at the heart of most of them is Chief Justice Roberts.
Behind the scenes, Roberts led the charge for the Court to blaze a new trail—relying on statements outside the record; invoking the wrong standard for the kind of relief the applicants sought; failing to even acknowledge the irreparable harm the government (and the environment) would suffer from the Court intervening; and pushing back aggressively when Justices Breyer and Kagan both urged a compromise that should have accounted for his ostensible concerns. I’ve suggested before that the real acceleration of the Court’s modern emergency docket behavior can be traced to 2018, right around when Justice Kavanaugh succeeded Justice Kennedy. But in the first major case in which the Court granted emergency relief as a means of shaping nationwide policy, it turns out that the justice who led the charge was the one who was doing quite a bit more than calling balls and strikes. (snip-the rest is on the page)
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