![\"Jodi](\"https:\/\/www.europesays.com\/people\/wp-content\/uploads\/2026\/04\/author-jodi-kantor-thumbLarge-v2.png\" "\\"Jodi")
<\/a>![\"Adam](\"https:\/\/www.europesays.com\/people\/wp-content\/uploads\/2026\/04\/author-adam-liptak-thumbLarge-v4.png\" "\\"Adam")
<\/a>April 18, 2026<\/p>\nJust after 6 p.m. on a February evening in 2016, the Supreme Court issued a cryptic, one paragraph ruling<\/a> that sent both climate policy and the court itself spinning in new directions.<\/p>\n For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.<\/p>\n But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama\u2019s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan\u2019s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.<\/p>\n At the time, the ruling seemed like a curious one-off. But that single paragraph turned out to be a sharp and lasting break. That night marks<\/a> the birth, many<\/a> legal<\/a> experts<\/a> believe<\/a>, of the court\u2019s modern \u201cshadow docket,\u201d the secretive track that the Supreme Court has since used to make many major decisions, including granting President Trump more than 20 key victories on issues from immigration to agency power.<\/p>\n Since that night a decade ago, the logic behind the Supreme Court\u2019s pivotal 2016 order has remained a mystery. Why did a majority of the justices bypass time-tested procedures and opt for a new way of doing business?<\/p>\n The answer would remain secret for generations, legal experts predicted. \u201cWe\u2019ll never know (at least, until our grandkids can read the justices\u2019 internal papers from that time period),\u201d Stephen Vladeck, a law professor at Georgetown, wrote in a newsletter<\/a> in February marking the anniversary of the order.<\/p>\n The New York Times has obtained those papers and is now publishing them<\/a>, bringing the origins of the Supreme Court\u2019s shadow docket into the light.<\/p>\n The 16 pages of memos, exchanged in a five-day dash, provide an extraordinarily rare window into the court, showing how the justices talk to one another outside of public view.<\/p>\n Writing on formal letterhead, but addressing one another by their first names and signing off with their initials, they sound notes of irritation, air grievances and plead for more time. In addition to the usual legal materials, they cite a blog post and, twice, a television interview. They sometimes engage with one another\u2019s arguments. But they often simply talk past each other.<\/p>\n In public, Chief Justice John G. Roberts Jr. has cultivated a reputation for care and caution. The papers reveal a different side of him. At a critical moment for the country and the court, the papers show, he acted as a bulldozer in pushing to stop Mr. Obama\u2019s plan to address the global climate crisis.<\/p>\n When colleagues warned the chief justice that he was proposing an unprecedented move, he was dismissive. \u201cI recognize that the posture of this stay request is not typical,\u201d he wrote. But he argued that the Obama plan, which aimed to regulate coal-fired plants, was \u201cthe most expensive regulation ever imposed on the power sector,\u201d and too big, costly and consequential for the court not to act immediately.<\/p>\n In the Trump era, he and the other conservative justices have repeatedly empowered the president through their shadow docket rulings. By contrast, the papers reveal a court wielding those same powers to block Mr. Obama. Justice Samuel A. Alito Jr. warned that if the court failed to stop the president, its own \u201cinstitutional legitimacy\u201d would be threatened.<\/p>\n The court\u2019s liberals pushed back, but compared with their recent slashing dissents, they were not especially forceful, mostly confining their arguments to procedures and timing.<\/p>\n The papers expose what critics have called the weakness at the heart of the shadow docket: an absence of the kind of rigorous debate that the justices devote to their normal cases.<\/p>\n After obtaining the papers, The Times confirmed their authenticity with several people familiar with the deliberations and shared them with a spokeswoman for the court. The Times posed detailed questions to the justices who wrote the memos; they did not respond.<\/p>\n Since that breakneck February 2016 exchange, the emergency docket has swelled into a major part of the court\u2019s business, as the justices have short-circuited the deliberations of lower courts. The decisions are technically temporary, but are often hugely consequential.<\/p>\n Rulings with no explanation or reasoning, like the sparse paragraph from that February night, have become routine. The emergency docket is now a central legacy of the court led by Chief Justice Roberts.<\/p>\n Read a decade later, the memos suggest that none of the justices fully appreciated what they were doing: embarking on a questionable new way of operating.<\/p>\n A Constitutional Collision<\/p>\n The 2016 case was a collision between the principles and personalities of Mr. Obama and Chief Justice Roberts.<\/p>\n The president was under enormous pressure to address the global climate crisis. He had campaigned on that promise, then for eight years as the planet heated, he failed to get major environmental legislation through Congress. With his term about to end, this was his last chance to act.<\/p>\n The chief justice was eager to assert his institution\u2019s authority and to rein in Mr. Obama\u2019s Environmental Protection Agency, which he believed had sidestepped a recent ruling.<\/p>\n The two men, both cerebral, polished Harvard Law graduates, had long posed a puzzle: How could such smooth personalities create so much friction?<\/p>\n Mr. Obama had been one of just 22 senators to vote against Chief Justice Roberts\u2019s confirmation in 2005, saying that the nominee had \u201cfar more often used his formidable skills on behalf of the strong in opposition to the weak.\u201d Four years later, the two men managed to botch<\/a> the simple task of reciting the presidential oath at Mr. Obama\u2019s first inauguration.<\/p>\n True, Chief Justice Roberts had cast the decisive vote in 2012 to save the centerpiece of the Affordable Care Act, Mr. Obama\u2019s signature legislative achievement. But that was approved by Congress.<\/p>\n After Republicans won control of Congress, Mr. Obama responded by pushing the boundaries of presidential authority, promising that his administration would act on pressing problems \u201cwith or without Congress.\u201d He tightened gun regulations and granted deportation relief to millions of undocumented immigrants.<\/p>\n The chief justice and some of his colleagues were watching warily, concerned the president was going past what the Constitution allowed him to do on his own. In a 2014 opinion<\/a> written by Justice Antonin Scalia, the court warned Mr. Obama that he needed to tread carefully in setting environmental policy without congressional approval.<\/p>\n That statement was one of the early articulations of what would come to be known as the major questions doctrine, saying that on important matters, executive branch agencies could act only with clear direction from Congress.<\/p>\n Then, in June 2015, the court ruled against the Obama administration<\/a> in a case involving mercury emissions. The next day, an E.P.A. official, Janet McCabe, made what now looks like a tactical error. She issued a statement that, according to the papers, offended the chief justice and struck him as an attempt to sideline the court.<\/p>\n She asserted that the court\u2019s ruling had come too late to matter.<\/p>\n \u201cThe majority of power plants are already in compliance or well on their way to compliance,\u201d Ms. McCabe wrote on the agency\u2019s website<\/a>.<\/p>\n In a recent interview, Ms. McCabe said she had not meant \u201cto be disrespectful of the Supreme Court or the judicial system\u201d and was merely stating a legal reality. Indeed, over more than three years of litigation, no court had stayed the mercury regulation and power plants had already taken major steps to conform.<\/p>\n With the clock ticking down on Mr. Obama\u2019s presidency and the global Paris climate accords looming, the White House tried to craft a signature piece of environment legislation that could survive the court\u2019s scrutiny.<\/p>\n In October 2015, the E.P.A. issued<\/a> Mr. Obama\u2019s Clean Power Plan<\/a>, which aimed to shift the power sector from reliance on coal to natural gas, wind and solar. The goal was an \u201caggressive transformation in the domestic energy industry,\u201d according to a White House fact sheet.<\/p>\n Its legal basis was open to question. The agency said it was authorized by a seldom-used provision of an old law, the Clean Air Act of 1970. Critics responded that it was unlikely that Congress would have authorized a sweeping overhaul of the nation\u2019s power supply in such an obscure provision.<\/p>\n Got a news tip about the courts?\u00a0If you have information to share about the Supreme Court or other federal courts, please contact us.<\/p>\n When more than two dozen states, along with business groups, quickly sued to stop the program, Obama administration lawyers readied for an extended fight, they said in recent interviews. The case was surely going to wind its way to the Supreme Court eventually, and given the tension between the conservative justices and the Obama administration, they knew it might not survive.<\/p>\n The challenge to the regulation went straight to the D.C. Circuit, which set it down for a prompt argument, but refused to halt the plan in the meantime. At that point the challengers, led by West Virginia, tried to take a shortcut. Instead of waiting for the appeals court to hear the case, they went straight to the Supreme Court, asking the justices to pause the plan for the duration of the litigation, including an eventual possible return trip to the Supreme Court.<\/p>\n Both sides agreed that it was an unusual request.<\/p>\n \u201cThis had never been done,\u201d Elbert Lin, who was West Virginia\u2019s solicitor general, acknowledged in an interview.<\/p>\n At the Justice Department, lawyers involved with the case said they were not terribly worried. To be sure, the court sometimes granted emergency applications from death row inmates and in fast-moving election disputes. But the court had never intervened on an emergency basis to shut down a major presidential initiative.<\/p>\n \u201cIn football parlance,\u201d said Avi S. Garbow, the E.P.A.\u2019s general counsel at the time, \u201cwe would call it a Hail Mary.\u201d<\/p>\n A Five-Day Sprint<\/p>\n West Virginia\u2019s emergency request<\/a> landed with Chief Justice Roberts on Jan. 26, 2016, just as the Supreme Court was scattering into vacation mode for an annual midwinter break.<\/p>\n Justice Clarence Thomas retreated to Florida<\/a> to teach a law school class. Justice Stephen G. Breyer delivered a lecture in Paris. Justice Ruth Bader Ginsburg gave a talk<\/a> in Italy billed as a conversation with \u201cthe Notorious RBG.\u201d Justice Antonin Scalia sped through Asia, where he promoted a book, met with the prime minister of Singapore and schmoozed with local lawyers over drinks at a rooftop bar.<\/p>\n In the meantime, Chief Justice Roberts worked speedily, ordering the Obama administration to respond in just eight days.<\/p>\n To better understand what happened next, The Times spoke to 10 people, liberals and conservatives, who were familiar with the deliberations over the pivotal emergency order and who spoke on the condition of anonymity because confidentiality was a condition of their employment.<\/p>\n At the court, word was passing among the clerks, who serve as brokers among the nine chambers: Some of the conservative justices were taking the long-shot application seriously.<\/p>\n It was initially hard to tell how the vote would fall, people familiar with the discussions said. The Supreme Court felt less predictable back then, more alive with debate. The court was technically divided 5 to 4 between justices appointed by Republicans and Democrats, but Justice Kennedy, appointed by President Ronald Reagan, was a true swing vote, \u201ca persuadable person,\u201d as one of those people put it. The term before, he had written the majority opinion<\/a> to establish a constitutional right to same-sex marriage<\/a>.<\/p>\n On Feb. 5, the internal correspondence obtained by The Times shows, the chief justice circulated a blast of a memo, insisting that the court halt the president\u2019s plan.<\/p>\n His arguments were forceful, quick, and filled with confident predictions. The court was going to give the case a full hearing eventually, he forecast. At that point, the justices would vote to overturn the Obama plan, he said, because it went beyond the boundaries of the Clean Air Act.<\/p>\n For now, the chief justice contended that the court had to act immediately because the energy industry \u201cmust make changes to business plans today.\u201d<\/p>\n \u201cAbsent a stay, the Clean Power Plan will cause (and is causing) substantial and irreversible reordering of the domestic power sector before this court has an opportunity to review its legality,\u201d he wrote.<\/p>\n In his final paragraph, the chief justice again told colleagues that the E.P.A. had done an end run around the court with the mercury regulation just months before and said the agency had signaled that it was planning to do the same thing again.<\/p>\n The chief justice cited an unusual source for that last point, one that would not ordinarily figure in a Supreme Court opinion: an interview with the BBC<\/a> in which the E.P.A. administrator at the time, Gina McCarthy, had said \u201cwe are baking\u201d the Clean Power Plan \u201cinto the system.\u201d<\/p>\n \u201cThe comments of the E.P.A. administrator herself indicate that without immediate action from this court, this rule will become functionally irreversible.\u201d<\/p>\n Chief Justice John G. Roberts Jr.<\/p>\n In the memo, he weighed no potential downsides of his proposal and considered no alternatives.<\/p>\n Justice Breyer responded later that day to the chief\u2019s memo but did not address all its points. Such stays were unusual, he wrote, stating his objections mildly.<\/p>\n He skipped over the question of whether the plan was lawful, asking only: Why the rush? The circuit court had already set a date to hear the case in June. The first deadline for power plants to reduce their emissions was six years away; full compliance was not required until 2030. That was plenty of time for the case to play out through the legal system.<\/p>\n The chief wrote right back the next day sounding irritated and blunt.<\/p>\n Speed was vital, he said, because environmental regulation was going to be very expensive for states and the power industry. The sums involved could approach $480 billion, he asserted, and industry groups would have to start preparations immediately.<\/p>\n \u201cWithout a stay of the E.P.A.\u2019s rule, both the states and private industry will suffer irreparable harm from a rule that is \u2014 in my view \u2014 highly unlikely to survive,\u201d he wrote. He was predicting the ultimate outcome of a case that had barely begun to be litigated.<\/p>\n Seeing how little headway Justice Breyer had made, Justice Elena Kagan sounded an alarm. In a memo on Feb. 7, she warned the chief justice that he was departing from the court\u2019s long-established way of doing business.<\/p>\n \u201cThe unique nature of the relief sought in these applications gives me real pause.\u201d<\/p>\n Justice Elena Kagan<\/p>\n Court action at this point in the process would be \u201cunprecedented,\u201d she added. She mentioned that she was inclined to find that the Obama plan was lawful, but she said the thin briefing made it difficult for her \u201cto determine with any confidence which side is ultimately likely to prevail.\u201d<\/p>\n Justice Alito issued a salvo on the same day as Justice Kagan, with neither of them addressing the other. Echoing the chief justice\u2019s sense of insult and suspicion about the Obama administration, he wrote that the E.P.A. appeared to be trying to render the court irrelevant.<\/p>\n \u201cA failure to stay this rule threatens to render our ability to provide meaningful judicial review \u2014 and by extension, our institutional legitimacy \u2014 a nullity.\u201d<\/p>\n Justice Samuel A. Alito Jr.<\/p>\n The chief justice and Justices Scalia, Thomas and Alito wanted to halt the Obama plan, according to people familiar with the deliberations. Justices Breyer, Ginsburg, Sotomayor and Kagan were opposed. (It is not clear whether Justices Scalia, Thomas or Ginsburg set out their reasons in writing.)<\/p>\n As usual, the decision would come down to Justice Kennedy.<\/p>\n On Feb. 9, he dashed off a quick, three-sentence note. He believed that the Supreme Court would ultimately stay the Clean Power Plan soon anyway, and that there was no reason to put off the inevitable. He was voting with the chief justice.<\/p>\n Over just five days, the justices had decided the issue. Even as they debated the Obama plan\u2019s possible burden on the power industry, in the entire chain of correspondence obtained by The Times, not a single justice, conservative or liberal, mentioned the dangers of a warming planet as one of the possible harms the court should consider.<\/p>\n At 6:20 p.m. on Tuesday, Feb. 9, the court alerted the public to its decision, releasing the cryptic one-paragraph order.<\/p>\n To the public, the White House tried to downplay<\/a> the speed and starkness of its loss, calling it merely \u201ca bump in the road\u201d on a call with reporters. But behind closed doors, officials were astonished that the court had intervened so quickly, they said later. Mr. Garbow, the E.P.A.\u2019s general counsel, was meeting with Ms. McCarthy about the water crisis in Flint, Mich., when the order landed. An aide interrupted, handing him a note that he said he read with \u201cutter shock and surprise.\u201d<\/p>\n These days, justices who disagree with emergency orders often protest in vigorous written dissents. In 2016, the four liberal justices merely noted they had voted against the order. Although their private memos included extended arguments against the majority\u2019s approach, they said nothing more in public.<\/p>\n In the moment, the case looked like an outlier, not a turn toward a new way of operating, according to people involved. Nor did it look like a final decision on climate policy. Hillary Clinton was the strong favorite to win the presidency later that year. With her election, the court would be poised to take a step to the left.<\/p>\n Then, just four days after the court\u2019s decision, many of the certainties, projections and assumptions that the justices had made in those rushed memos started to collapse.<\/p>\n The New Normal<\/p>\n The following Saturday morning, Justice Scalia failed to appear for breakfast at a weekend hunting retreat in Texas. Hours later he was found dead. As far as the public record reveals, the vote on the Clean Power Plan was his last. Had the court not acted with exceptional speed, the case would have ended in a deadlock and the Obama plan would have stayed in place.<\/p>\n But not for long. With Mr. Trump\u2019s election that November, the plan was doomed as a practical matter.<\/p>\n In the end, the legacy of those five days was more about the transformation of the court than it was about the fate of the Obama effort to confront climate change.<\/p>\n The litigation continued but became a ghost ship of a case after Mr. Trump replaced it with his own regulation. In 2022, this time following normal procedures, the Supreme Court concluded that the Clean Air Act did not authorize the E.P.A. to issue sweeping regulations across the power sector to address climate change.<\/p>\n
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