Chief Justice John Roberts was the driving force behind the rise of the Supreme Court\u2019s emergency docket as a powerful tool to empower the activist conservative majority \u2014 that\u2019s the main takeaway of a cache of memos leaked to the New York Times.<\/p>\n
Roberts\u2019 immediate motivation was to enforce the major questions doctrine, another tool of conservative activism that he has made his signature contribution to the court\u2019s jurisprudence. In retrospect, the convergence between the emergency docket and the major questions doctrine was no coincidence. Taken together, the docket and the doctrine will define the legacy of the Roberts Court.<\/p>\n
It was already public knowledge that the 2016 environmental case of West Virginia v. EPA marked the first time the Supreme Court used its emergency powers in a new way that has since become standard. To simplify, the court broke precedent by issuing an order blocking the Obama administration\u2019s Clean Power Plan from going into effect. The court did so even though a challenge to the legality of the Environmental Protection Agency\u2019s plan hadn\u2019t yet been addressed by the U.S. Court of Appeals for the DC Circuit \u2014 and even though the appellate court had turned down the petitioner\u2019s request to block the regulation in the meantime.<\/p>\n
What makes the leaked memos newsworthy is that, when the Supreme Court issued its order in the emergency docket in 2016, it didn\u2019t give an explanation. In the memos, you can see Roberts giving his explanation; the support he received from Justice Samuel Alito; the pushback from the liberal justices; and the basis for the decisive vote cast by Justice Anthony Kennedy.<\/p>\n
In his memo to the other justices recommending the new use of the emergency docket, Roberts did not acknowledge that anything fundamentally new would be happening if the court granted the request to stop the Clean Power Plan from going into effect. He just recited the ordinary test the court uses to determine whether a stay is justified, which includes a reasonable probability that four justices would vote to hear the case; a fair prospect that a majority of the court would then reverse the decision below; and a likelihood of irreparable harm to the applying party.<\/p>\n
Applying those factors, the chief justice prefigured privately the major questions doctrine that he would deploy publicly when the Supreme Court ultimately decided the case six years later. According to that doctrine, the justices can and should block the executive branch when it proposes a new or novel interpretation of an old statute to make a significant change in its regulatory authority without clear congressional authority.<\/p>\n
Then, equally important, the chief justice insisted that the industry actors who were seeking the stay would experience irreparable harm if they had to wait for the DC Circuit to rule on the case. His rationale was that industry would have to start preparing for new performance standards right away, even though the legal rules would not go into effect until at least 2022. \u201cGiven the long lead times and high capital expenditures required for the construction of new plants,\u201d he wrote, \u201conce a utility takes steps to comply with the rule, its actions are not likely to be undone.\u201d<\/p>\n
Justice Stephen Breyer, ever the pragmatist, wrote back to the chief proposing a modest compromise: to deny the stays but reassure the industry that power companies were entitled to extensions under the regulation.<\/p>\n
After Roberts disagreed, Justice Elena Kagan wrote a frank and clear memo explaining that it would be unprecedented to block the regulation given that the DC Circuit had already refused the stay and was considering the case. While she was at it, Kagan objected to Roberts\u2019 major-questions line of argument and rejected the idea of an irreparable harm to the industry actors.<\/p>\n
Ultimately, the decision came down to Kennedy, as many did at that time in the history of the court. In a two-sentence memorandum, Kennedy said simply that he expected that the Supreme Court would grant the stay anyway four to six months later, when the DC Circuit would have ruled. \u201cFairness to the parties counsels that we should grant it now,\u201d he wrote.<\/p>\n
It seems probable that in 2016, Roberts did not fully anticipate just how important \u2014 and how controversial \u2014 the emergency docket would soon become. Rather, he was concerned about the core issue that lay behind his major questions doctrine: his fear that the executive branch could use the tools of statutory interpretation to bring about major policy changes, as the Obama administration had done with the Clean Power Plan. Since then, the doctrine \u2014 now called \u201cMQD\u201d by court-watchers \u2014 has become Roberts\u2019 most powerful tool. It\u2019s also the court\u2019s most effective activist doctrinal tool to block executive action.<\/p>\n
Mostly that activism has been conservative. In addition to using MQD in 2022 to overturn the Clean Power Plan, the court relied on it the same year to block the COVID-era vaccine-or-test mandate issued by the Occupational Safety and Health Administration. Then, in 2023, the court\u2019s conservative majority used it to block the Biden administration\u2019s student loan forgiveness program.<\/p>\n
More recently, Roberts wrote the opinion for the court using MQD to block President Donald Trump\u2019s tariffs. This was an important showing that the doctrine could be used against Republican presidents and not only against Democratic ones. But it\u2019s noteworthy that the court didn\u2019t use the emergency docket to stay the tariffs before hearing that case, apparently considering hundreds of billions of dollars in tariffs not to count as irreparable injury for those who paid them.<\/p>\n
History will see the emergency docket and MQD as twin drivers of the Roberts court\u2019s conservative activism. That\u2019s a surprising legacy for a chief justice who came to the court as an advocate of judicial restraint, and has long positioned himself as a judicial moderate committed to neutrally calling balls and strikes.<\/p>\n
Yakima Herald-Republic opinion section glossary<\/p>\n
Editorials <\/p>\n
Editorials reflect the opinion of the newspaper\u2019s editorial board and are meant to offer perspective, raise questions or advocate for change. <\/p>\n
Though grounded in fact, editorials express opinions and are intended to spark thought and discussion. <\/p>\n
Opinion columns: <\/p>\n
Opinion columns represent the personal views of the writer, not the position of the newspaper. <\/p>\n
While news articles aim to present facts without bias, opinion columns offer fact-based individual perspectives.<\/p>\n
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of \u201cTo Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”<\/p>\n","protected":false},"excerpt":{"rendered":"Chief Justice John Roberts was the driving force behind the rise of the Supreme Court\u2019s emergency docket as…\n","protected":false},"author":2,"featured_media":46218,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[146],"tags":[10682,535,55],"class_list":{"0":"post-46217","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-john-roberts","8":"tag-columnists","9":"tag-john-roberts","10":"tag-opinion"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@people\/116477252177409865","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/46217","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/comments?post=46217"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/46217\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media\/46218"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media?parent=46217"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/categories?post=46217"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/tags?post=46217"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}