{"id":36352,"date":"2026-04-21T17:08:09","date_gmt":"2026-04-21T17:08:09","guid":{"rendered":"https:\/\/www.europesays.com\/people\/36352\/"},"modified":"2026-04-21T17:08:09","modified_gmt":"2026-04-21T17:08:09","slug":"a-new-supreme-court-leak-shows-john-roberts-at-his-worst","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/people\/36352\/","title":{"rendered":"A new Supreme Court leak shows John Roberts at his worst."},"content":{"rendered":"

Sign up for Executive Dysfunction<\/a>, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to the law\u2014and how the law is pushing back.<\/p>\n

There is something deeply incongruous about the formal letterhead Chief Justice John Roberts used to lobby his colleagues against President Barack Obama\u2019s signature climate policy. On Saturday, the New York Times published<\/a> this document as part of a report on a stunning set of leaked internal memos<\/a> from 2016 that effectively launched the Supreme Court\u2019s modern shadow docket. At first glance, the documents look like a legitimate judicial product. A \u201cMemorandum to the Conference\u201d from the \u201cChambers of the Chief Justice\u201d certainly appears as if it might have been penned by a judge doing law. But these trappings of formality cannot elevate Roberts\u2019 partisan efforts into a principled judging. The substance of his arguments, as Georgetown Law professor Steve Vladeck has carefully explained<\/a>, is riddled with errors and oversights, and it appears to be cheap ornamentation gilding a petty vendetta against the Obama administration. And yet, in a time before the current conservative supermajority took hold, the chief\u2019s views carried the day, leading SCOTUS to issue an unprecedented 5\u20134 stay<\/a> against the climate plan. And the shadow docket, as we know it today, was born.<\/p>\n

While the court\u2019s conservatives have railed at the term \u201cshadow docket\u201d for years, insisting that the words imply secrecy and bad motives to a benign emergency procedure that operates according to neutral legal principles, the new reporting reveals exactly why the Republican-appointed justices don\u2019t want to shine public or academic light on this practice: If this leak is any indication, the public would be aghast to see the brazenly political, spin-soaked flimflam that goes into deciding these critical cases.<\/p>\n

The Times\u2019 latest expos\u00e9, by Jodi Kantor and Adam Liptak, documents the previously opaque internal court debate that led up to the Supreme Court\u2019s unprecedented obstruction of President Obama\u2019s Clean Power Plan in 2016. That they did so in a cryptic one-paragraph ruling was, in Kagan\u2019s words at the time, \u201cunprecedented.\u201d This event, though, became the precedent for all that followed. The EPA rule at issue would have required states to gradually shift energy generation toward green technology in a bid to fight climate change. Industry groups and red states swiftly challenged its legality, but the U.S. Court of Appeals for the District of Columbia Circuit declined to block the new plan on an emergency basis, and rapidly calendared the case for oral argument.<\/p>\n

The plaintiffs then filed a Hail Mary request with the Supreme Court to intervene before the D.C. Circuit even heard the merits of the case. At the time, SCOTUS had never before frozen an executive branch policy while an appeals court was still reviewing it (and had already refused to grant a stay). Besides, the plaintiffs had plenty of time to fight the EPA: The states were not required to comply with the new rule until two years later in 2018, as Justice Stephen Breyer pointed out, while the fossil fuel companies did not have to take action for six more years.<\/p>\n

And yet the conservative justices issued the stay anyway, without a word of justification, kicking off a new era of aggressive and often unexplained SCOTUS intervention in lower court proceedings that has become the disturbing norm a decade later. Until Saturday, we had to guess how and why the Supreme Court decided to shatter precedent and strangle the Clean Power Plan in its cradle. The newly leaked memos<\/a> from Roberts and Breyer\u2014along with those by Justices Samuel Alito, Elena Kagan, Anthony Kennedy, and Sonia Sotomayor\u2014show how the court came to claim this new \u201cemergency\u201d power for itself. Perhaps most shockingly, this correspondence reveals that it was the chief justice who pressed hardest for a swift and sweeping decision, and that his reasoning had far more to do with presidential politics and personal grievance than any majestic legal logic. More than anything, the new reporting puts the lie to the hollow claims of the chief justice sitting astride a mythical 3\u20133\u20133 court<\/a> where his measured centrism guides the nation through partisan times. It is now manifestly clear that Roberts is himself a top partisan operator<\/a>, especially under the cover of secrecy and internal norms of collegiality and confidentiality.<\/p>\n

Vladeck has already laid out<\/a> Roberts\u2019 errors and contortions of the law: Among other things, he invoked the wrong standard for relief, greasing the skids for premature action; he also fixated on the Clean Power Plan\u2019s supposed \u201charm\u201d to the red-state plaintiffs and the fossil fuel industry, while ignoring the harms to the government, the public, and the planet if the plan were blocked. But what stands out just as much is the cynical basis for the chief justice\u2019s haste in leaping in before the matter could be conclusively resolved by a court below. To that end, he cited two media interviews with Obama administration officials to explain why the court had to act immediately. In one, an EPA official said new mercury restrictions had proved successful even though the Supreme Court struck them down<\/a> because most power plants had complied even before SCOTUS\u2019 decision. In another, the EPA administrator said her agency was \u201cbaking\u201d the Clean Power Plan \u201cinto the system\u201d and that it would be \u201csolid no matter what Congress\u201d later did.<\/p>\n

Roberts quoted this second interview with evident irritation. \u201cI am of the mind,\u201d he wrote, \u201cthat a rule designed to transform a substantial swath of the nation\u2019s economy should be tested by this Court before it is presented as a fait accompli. But it seems that the EPA is sufficiently confident of this rule\u2019s immediate implications that not even the combined efforts of Congress and the President could reverse its effects.\u201d<\/p>\n

<\/p>\n

\"\"<\/p>\n

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This gibe is especially rich in light of how frequently in recent years Roberts has voted<\/a> to let the Trump administration implement a policy with immense, irreversible national consequences before his court has approved it on the merits. Even at the time, though, his attitude prioritized political considerations over legal ones. As Breyer and Kagan pointed out, any \u201charm\u201d to red states and the fossil fuel industry was speculative and years away. The plaintiffs had not even established that shifting power generation toward technologies that inflict less damage on humans and the planet qualified as \u201charm\u201d here. The chief justice\u2019s biggest concern appeared to be that the Obama administration would be able to promote green energy before his court had a chance to stop it. And that he could not tolerate.<\/p>\n

The most charitable read of Roberts\u2019 intemperate intervention (and Alito\u2019s memo supports the same conclusion) is that the Obama administration, by way of comments, was somehow disrespecting the high court. In his musings, Alito asserted that if the court failed to stop the Obama regulations in its tracks, it would make a \u201cnullity\u201d of the court\u2019s authority and \u201cinstitutional legitimacy.\u201d Roberts similarly warned his colleagues that \u201cthe comments of the E.P.A. administrator herself indicate that without immediate action from this court, this rule will become functionally irreversible.\u201d The offense, in this telling, wasn\u2019t so much personal as institutional: Obama\u2019s EPA was allegedly short-circuiting the court\u2019s much-prized supremacy, and needed to be put in its place.<\/p>\n


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And yet even if this dispute was over lofty principles of judicial supremacy and institutional regard, the court\u2019s later conduct gave the game away. In the decade since this decision came down, it has mainly gone to the mat when Democratic presidents are in office, and has shown scant institutional self-respect when President Donald Trump trammels the judiciary\u2019s authority. (Just last year, the conservative supermajority rewarded the administration<\/a> for actively defying a lower court order blocking irreversible deportations without due process, showing zero concern about rendering judicial review a \u201cnullity.\u201d) That asymmetry shows how hollow the chief\u2019s claims of \u201cinstitutional legitimacy\u201d ring. These truncated, unsigned shadow docket orders have morphed from a one-off against Obama\u2019s EPA to a predictable thumb on the scale for unlawful Trump actions, making it abundantly clear that the conservative majority is only protective of its institutional prerogatives when an Obama or a Biden is enacting a rule with which they ideologically disagree.<\/p>\n

That EPA ruling in 2016, with its profoundly flawed analysis of what constitutes \u201cemergency\u201d and \u201charm,\u201d presaged the current Wild West abuse of the shadow docket to rubber-stamp policies and practices that seem dubiously meritorious, with adverse effects on millions of people waved away. And these memos lay bare the extent to which the work product underpinning these decisions is often half-hearted and vibes-based; animated more by grievance and hurt feelings than neutral legal rules. The dispiriting, inevitable conclusion to be drawn from these leaked documents is that the court\u2019s conservative wing is not simply abusing an \u201cemergency\u201d or \u201cinterim\u201d docket to achieve desired outcomes. Rather, it has invented a mechanism to conceal petty political vendettas and reckless, speculative reasoning from a public that has become rightly suspicious that this is how the court behaves behind closed doors.<\/p>\n

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