Leaked Emergency Docket Memos Show Deepening Supreme Court Split

Newly leaked documents from the Supreme Court’s decision to stay a landmark Obama-era climate policy shed light on a fracture among the justices over emergency rulings that has only widened as the court has moved further to the right.

The documents, internal memos from the justices’ discussions about whether to grant an unprecedented administrative stay blocking an Obama administration effort to reduce carbon emissions, were published Saturday by the New York Times.

The 5-4 court with Justice Anthony Kennedy often a swing vote that considered that policy, known as the Clean Power Plan, was markedly different than today’s where conservatives outnumber liberals 6-3. And as that conservative supermajority issued a spate of emergency decisions granting relief to the Trump administration, liberal justices have become far more apt to speak out.

In 2016, the liberal justices offered more measured arguments as to why the court shouldn’t have stepped in to block a plan by President Barack Obama to cut emissions from power plants and opted against any public dissent.

“When those memos were circulated about the climate order, it was still 5-4,” said Gregory Magarian, a law professor at Washington University in St. Louis. “The liberals may have still been more in a mindset of let’s be diplomatic and maybe we’ll peel off a fifth vote.”

Magarian, a former clerk to Justice John Paul Stevens, cautioned reading too much into the justices’ correspondence, noting that there’s different internal norms for memos compared to a dissent meant to go public.

But he said that the three liberal justices’ more recent strident criticism may reflect how the court’s composition has changed.

“When it’s 6-3, it’s a lot less likely, especially with the chief being the architect of this emergency docket stuff,” he said, a reference to Chief Justice John Roberts’ lead role in intervening in the climate case. “So now in the opinions I think you see the liberals writing.”

Justice Ketanji Brown Jackson, for example, last week said many of the court’s emergency docket decisions appear “utterly irrational.”

Still, if the liberal justices were being “strategically nice” in 2016, they still have those incentives, said Cornell University law professor Michael Dorf, citing decisions where Roberts, Amy Coney Barrett, and Brett Kavanaugh joined the liberals.

“It’s not really true it’s a 6-3 court,” he said. “It’s a 3-3-3 court.”

More Than Words

The liberal justices’ criticisms of the majority’s emergency rulings have increasingly spilled out beyond the walls of the court.

During speaking engagements earlier this month, Justice Sonia Sotomayor sharply criticized the conservative majority for encouraging a dramatic increase in emergency petitions—describing it as a self-inflicted problem stemming from a shifting view on irreparable harm.

“There is a belief among some on my court, the majority, that whenever we stop the executive branch from doing something that it wants to do that it’s irreparable harm to the government,” Sotomayor said while speaking at the University of Kansas School of Law.

That approach, now the court’s dominant one according to Sotomayor, contrasts with how Roberts and Justice Samuel Alito looked at the issue in the Clean Power Plan case. There, according to the newly revealed memos, the conservatives focused almost exclusively on potential harms to the energy sector if the policy was allowed to go into effect while litigation proceeded.

Critics who argue the memos show hypocrisy by Roberts, who has repeatedly sided with the Trump administration in emergency requests, are being “obtuse,” said William & Mary Law School professor Jonathan Adler.

Adler said the memos are written for a group of justices who all understand what’s on the table.

“The chief justice doesn’t need to talk about the other stay factors, and the other justices don’t bring it up either, because they all understand that staying the government is a big deal—because that’s irreparable harm,” Adler said. “They focused on the other things that needed discussing.”

Memos from both liberal justices published by the Times sounded notes of caution stressing that the stay would be unprecedented. Documents that appear to be associated with Sotomayor echoed those comments, arguing instead for “considered, unhurried” review. The Times said it’s unclear if Justice Ruth Bader Ginsburg circulated any memo.

The majority, according to Adler, did not have the benefit of hindsight in knowing what the emergency docket would become. At the time, they were more concerned with the appearance of a federal agency attempting to evade judicial review and concerns about the court losing its authority.

Those same concerns, he said, have driven Trump administration losses at the court, such as when the justices temporarily barred the government last year from removing individuals under the Alien Enemies Act.

‘Political Terms’

Kennedy ultimately cast the decisive vote in favor of intervening, siding with Roberts’ arguments that the states and private industry would suffer irreparable harm from complying with a rule that he said was unlikely to survive.

The decision was issued in February 2016 without explanation, marking a turning point for the court that critics say has pushed the court further into politics and invited claims that its reasoning isn’t consistent.

“It’s very easy to code that exchange and what the court did in that case in very simple political terms,” said Magarian. “That casts a light on what the court has done in the Trump years.”

William Baude, a University of Chicago law professor who coined the “shadow docket” term, in a post on his Divided Argument blog called the revelations “non-scandalous,” arguing Roberts’ views were already known, and that his memo is therefore not “much of a revelation.”

Cornell’s Dorf also said the behind-the-scenes revelations weren’t all that different from what the justices have said publicly.

“We knew there was ideological division about the use of the emergency docket,” he said. “That has continued to be the case. We don’t actually have a good test for whether either or both sides are using their arguments opportunistically.”