Shadow Docket Memos Reveal Uneven Reliance on Officials’ Remarks

One of the most striking aspects of The New York Times’ reporting on the 2016 US Supreme Court memos that ushered in a new, more muscular era for the court’s “shadow docket” is one that hasn’t gotten sufficient attention: the justices’ treatment of executive branch officials’ statements.

The justices’ memos—particularly those of Chief Justice John Roberts—regarding the Court’s decision to stay the Environmental Protection Agency’s “Clean Power Plan” are jaw-dropping for a number of reasons.

First, Roberts refuses to acknowledge the novelty of the requested stay—which the Supreme Court ultimately granted. Second, Roberts fails to consider the harm to the federal government and to the environment of blocking the EPA rule, while fixating on what he deems the “irreversible” harm to the coal industry of allowing the rule to remain in effect. For this, he cites the harm of “reduc[ing] coal production for power sector use by 2.0 percent in 2016 and 2017 and by 4.3 percent in 2018" without weighing any potential benefits for public health or the environment.

This asymmetrical concern is galling on its own terms; it’s even more outrageous in the context of the position the court appears to have taken in a number of shadow-docket orders in favor of the Trump administration. The message the Court has sent in these orders is that anytime the executive branch is prevented from enforcing one of its laws, that is irreparable harm, regardless of what is on the other side of the balance.

In the EPA case, Roberts’s first memo to the conference cited a BBC interview with the Obama administration’s EPA head, Gina McCarthy, where McCarthy noted that “we are baking” the Clean Power Plan “into the system.” Roberts’s memo intimated that the statement revealed an administration determined to force through its policy agenda regardless of the law.

But the full interview clearly communicates the administration’s position that the Clean Power Plan was just one part of an energy transition away from coal and toward renewable energy. Roberts’s second memo doubled down on the relevance of this interview, excerpting it at greater length as support for the position that absent Supreme Court intervention, the EPA’s new standards will become “functionally irreversible.”

This apparent reliance on the extra-record statements of executive branch officials stands in contrast to the Supreme Court’s unwillingness to seriously consider President Donald Trump’s anti-Muslim statements in Trump v. Hawaii, including comments as a presidential candidate that “Islam hates us” and that he was “calling for a complete and total shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”

These comments didn’t lead the Court to invalidate the travel ban in Trump v. Hawaii. But importantly, the Court’s opinion upholding the ban didn’t definitively close the door to the relevance of those types of statements.

In a number of upcoming cases, the high court will be presented with the statements of Trump and other officials—including in a pair of cases argued this week about the administration’s attempt to terminate Temporary Protected Status for Haiti and Syria. The lower court in one of those cases placed considerable reliance on statements by Trump and then-Homeland Security Secretary Kristi Noem in finding the TPS cancellation likely unlawful.

District Judge Ana Reyes noted Trump’s reference in his first term to Haiti as a “shithole country,” and his promotion in 2024 of the false claim that Haitian immigrants were “eating the pets of the people” in Springfield, Ohio. She also noted statements by Noem, including a social media post referring to immigrants as “killers, leeches, and entitlement junkies.”

If, as the shadow docket papers make clear, the Supreme Court is willing to rely on press interviews with Cabinet officials to justify staying an agency order, it should put at least as much weight on statements like those in deciding whether to permit the administration to engage in a massive de-documentation of hundreds of thousands of people living in the US under the TPS program.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Kate Shaw is a Professor of Law at the University of Pennsylvania Carey Law School, a co-host of the podcast Strict Scrutiny, and a contributing opinion writer for The New York Times.

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