The New York Times has obtained copies of some of the internal correspondence that resulted in a 2016 order pausing the Obama Administration’s Clean Power Plan.
What the memoranda reveal is that Roberts was functioning as an advocate, not a jurist. I'll quote Steve Vladeck here, who gets it right where you get it wrong: "Behind the scenes, Roberts led the charge for the Court to blaze a new trail—relying on statements outside the record; invoking the wrong standard for the kind of relief the applicants sought; failing to even acknowledge the irreparable harm the government (and the environment) would suffer from the Court intervening; and pushing back aggressively when Justices Breyer and Kagan both urged a compromise that should have accounted for his ostensible concerns."
This seems to elide a lot of the specific concerns about sourcing, debate, prior stances, consistency, harm, etc. that many others have brought up. As many are noting, Steve Vladeck had a nice summary of his own thoughts on this just today which dove into more of the details. I know you regularly collaborate with Steve on public commentary: maybe try to get him on the pod to talk about this!
I’ve believed for a while now that the SCOTUS is just a group of nine partisan hacks engaged in legal kabuki theater—so in that sense, yeah, I guess the memos weren’t that revelatory.
I listen to Divided Argument, and occasionally read writings by Professors Baude and Epps, because they often challenge my thinking about some of the issues they find interesting. Sometimes one or the other of them causes me to change my mind. Thank you, Divided Argument.
Professor Baude's post hasn't changed my view of the memoranda published by the NYT. The Chief Justice reasoned to his purportedly legally-principled decision from a pure policy foundation. The regulations are intrusive, costly, and being pursued by an aggressive would-be regulator. Therefore, they likely are unlawful.
That's hardly the hallmark of an umpire calling balls and strikes. Publication of documents showing how the Chief Justice analyzed the issue serve important public interests. Shame on the anonymous leaker(s). Bravo to the reporters, editors, and publishers of the NYT.
Since we can't comment on Stephen Sachs' post, I'll just pop back in here to note: a lot of hurried and fervent circling the wagons in here today! This is especially noteworthy as the hosts of the Divided Argument pod have time and again espoused a "we won't be breaking news and hot takes podcast" viewpoint (not that this necessarily carries over to the blog).
Sachs' analysis is interesting and makes me wonder how things would change if this information was gotten via third party who had no official position with the court, e.g. justices' spouse, ex-clerk's spouse, etc. It was ironic that just a few hours ago Baude linked to some writing about how "disciplinary charges in politically charged cases are often unconstitutional and even when they are not, they are unwise and counterproductive"! Not that the blog has to take some definitive stance on this topic, just notably ironic.
Still between both pieces on the leaks I haven't read much around here about the standard of review, the unprecedented process, the merits, the harm analysis, the fact finding, the politics, etc.
Re: Readers’ inability to comment on Professor Sachs’s post on Divided Argument.
Yes, they are circling the wagons and putting up a one-way force field which allows outgoing arguments only but no responses - the very antithesis of Divided Argument. But it’s no wonder that Professor Sachs will brook no dissent; some of his statements are riddled with inconsistencies both logical and factual.
This is not the place for Professor Sachs’s readers to be responding to his posts. If he wants to post statements with no opportunity to respond or comment, then he should start his own Substack and call it “My Ipse Dixit”. I acknowledge the redundancy, but it is intentional to emphasize my point.
The real purpose of my comment is to implore the founders of Divided Argument to adopt an editorial policy that requires all posts be open to comments. Otherwise, what’s the point?
I respectfully disagree. There are none so blind as those whose knowingly choose not to see. Your post is nothing short of the professorial equivalent of “Move along; there’s nothing to see here.”
Well that’s that, Either you are carrying water for the court or worse truly believe this BS. Justice Jackson is the only person on the court who refuses to remain silent or become a willing participant. SHAME
I worried when you announced your partnership with Advisory Opinions and scotusblog you’d lose independence.
I don’t know if that’s what happened but I can’t listen to your words as honest or sincere, you are just another conservative commentator carrying water for the malignancies destroying the planet and lives of its inhabitants for pure avarice wether you see it or not that much is clear thee right is comprised of individuals who prioritize themselves & their personal wealth above life liberty and country.
The SCOTUS spent all the goodwill capital accumulated since the end of WWII by willingly becoming an active participant in the rough and tumble of politics. Now they are scrutinized in the same way that all politicians are scrutinized. They have no one to blame but themselves.
I think several things can be true at the same time.
1) The way Roberts acted wasn't up to the ideal standards one should hope for from a justice -- I find many of Vladeck's criticisms on point and correct.
2) It isn't some bombshell exposure of hypocrisy and proof of the court's illegitimacy. It is the kind of thing one kinda expects when you appoint human beings with their biases and see their unconsidered off the cuff remarks (but this is why the shadow docket is dangerous ... people don't have the structure and argument that forces them to correct those beliefs).
3) These leaks are very bad.
---
In particular, I don't think the whole bit about him calling it an unprecedented regulatory expansion is all that unprecedented. I don't like it and I personally would prefer a far more formalist court that looks less at outcomes but every side talks about the harms (eg compare talk regarding overturning Roe about the massive harms that will be done to women). I think the concerns Vladeck focused on are more substantial.
I likewise have difficulty getting worked up over the memos. The question of how aggressively we want the Supreme Court to step in to stay executive actions it will likely find unconstitutional is an interesting one, but I detect precious little consideration of that issue as such in the New York Times stories about the memos and subsequent commentary. I don't know Kantor's politics, or Liptak's, but I can guess that they would not find scandalous in the least aggressive moves by the Supreme Court to stop Trump's unconstitutional actions, a change in usual operating practice for which they would no doubt find ample justification in the number and scale of such actions. I tend to agree with that, but then I can't profess retrospective outrage when the shoe is on my guy's foot. (And Obama is my guy, to be sure.)
When the justices do consider whether to step in, I want them to consider likelihood of success on the merits, a usual and sometimes dominant factor in considering interim relief of any sort in any court that Kantor/Liptak come close to suggesting is some sort of illegitimate prejudging.
Look, a majority of the Supreme Court was not going to go along with the Clean Power Plan and they didn't want it to become entrenched policy pending review. Their position may be wrong on the merits, but that's about the merits, not the propriety of interim relief as such.
Meanwhile, I'm not persuaded that Roberts's failure to consider irreparable harm to the environment is a gotcha. Likelihood of success is the overwhelming factor here. By the logic of this criticism, the Court would be obligated to engage in a searching review of all of the potentially positive effects of a policy and consider those in the balance. But if the action is, let's stipulate, pretty clearly unconstitutional by the Court's lights, no matter the policy's benefit, such a balancing is unnecessary.
If, for example, a Republican president were to purport to invalidate by executive order all state gun control laws on a misguided view of the Second Amendment, the Court need not consider the president's claim that more good guys with a gun would stop more bad guys with guns and thus prevent the irreparable harm of gun crimes. The occasion would not be one to consider the pros and cons of gun restrictions. It would be sufficient for the Court to determine that the president is clearly overreaching and, on that basis, stay the effect of the order pending review.
Would it be accurate to compare the February 2016 order on clean power with the April 2025 1 a.m. order in A.A.R.P. v. Trump enjoining removal of Venezuelans labeled TdA members? In both cases, it looks to me, SCOTUS intervened speedily not because of politics but because it had already said ‘No’ on the issue, and the executive was attempting to push similar conduct forward without judicial review.
What the memoranda reveal is that Roberts was functioning as an advocate, not a jurist. I'll quote Steve Vladeck here, who gets it right where you get it wrong: "Behind the scenes, Roberts led the charge for the Court to blaze a new trail—relying on statements outside the record; invoking the wrong standard for the kind of relief the applicants sought; failing to even acknowledge the irreparable harm the government (and the environment) would suffer from the Court intervening; and pushing back aggressively when Justices Breyer and Kagan both urged a compromise that should have accounted for his ostensible concerns."
This seems to elide a lot of the specific concerns about sourcing, debate, prior stances, consistency, harm, etc. that many others have brought up. As many are noting, Steve Vladeck had a nice summary of his own thoughts on this just today which dove into more of the details. I know you regularly collaborate with Steve on public commentary: maybe try to get him on the pod to talk about this!
I’ve believed for a while now that the SCOTUS is just a group of nine partisan hacks engaged in legal kabuki theater—so in that sense, yeah, I guess the memos weren’t that revelatory.
I listen to Divided Argument, and occasionally read writings by Professors Baude and Epps, because they often challenge my thinking about some of the issues they find interesting. Sometimes one or the other of them causes me to change my mind. Thank you, Divided Argument.
Professor Baude's post hasn't changed my view of the memoranda published by the NYT. The Chief Justice reasoned to his purportedly legally-principled decision from a pure policy foundation. The regulations are intrusive, costly, and being pursued by an aggressive would-be regulator. Therefore, they likely are unlawful.
That's hardly the hallmark of an umpire calling balls and strikes. Publication of documents showing how the Chief Justice analyzed the issue serve important public interests. Shame on the anonymous leaker(s). Bravo to the reporters, editors, and publishers of the NYT.
Since we can't comment on Stephen Sachs' post, I'll just pop back in here to note: a lot of hurried and fervent circling the wagons in here today! This is especially noteworthy as the hosts of the Divided Argument pod have time and again espoused a "we won't be breaking news and hot takes podcast" viewpoint (not that this necessarily carries over to the blog).
Sachs' analysis is interesting and makes me wonder how things would change if this information was gotten via third party who had no official position with the court, e.g. justices' spouse, ex-clerk's spouse, etc. It was ironic that just a few hours ago Baude linked to some writing about how "disciplinary charges in politically charged cases are often unconstitutional and even when they are not, they are unwise and counterproductive"! Not that the blog has to take some definitive stance on this topic, just notably ironic.
Still between both pieces on the leaks I haven't read much around here about the standard of review, the unprecedented process, the merits, the harm analysis, the fact finding, the politics, etc.
Re: Readers’ inability to comment on Professor Sachs’s post on Divided Argument.
Yes, they are circling the wagons and putting up a one-way force field which allows outgoing arguments only but no responses - the very antithesis of Divided Argument. But it’s no wonder that Professor Sachs will brook no dissent; some of his statements are riddled with inconsistencies both logical and factual.
This is not the place for Professor Sachs’s readers to be responding to his posts. If he wants to post statements with no opportunity to respond or comment, then he should start his own Substack and call it “My Ipse Dixit”. I acknowledge the redundancy, but it is intentional to emphasize my point.
The real purpose of my comment is to implore the founders of Divided Argument to adopt an editorial policy that requires all posts be open to comments. Otherwise, what’s the point?
I respectfully disagree. There are none so blind as those whose knowingly choose not to see. Your post is nothing short of the professorial equivalent of “Move along; there’s nothing to see here.”
Well that’s that, Either you are carrying water for the court or worse truly believe this BS. Justice Jackson is the only person on the court who refuses to remain silent or become a willing participant. SHAME
I worried when you announced your partnership with Advisory Opinions and scotusblog you’d lose independence.
I don’t know if that’s what happened but I can’t listen to your words as honest or sincere, you are just another conservative commentator carrying water for the malignancies destroying the planet and lives of its inhabitants for pure avarice wether you see it or not that much is clear thee right is comprised of individuals who prioritize themselves & their personal wealth above life liberty and country.
The SCOTUS spent all the goodwill capital accumulated since the end of WWII by willingly becoming an active participant in the rough and tumble of politics. Now they are scrutinized in the same way that all politicians are scrutinized. They have no one to blame but themselves.
I think several things can be true at the same time.
1) The way Roberts acted wasn't up to the ideal standards one should hope for from a justice -- I find many of Vladeck's criticisms on point and correct.
2) It isn't some bombshell exposure of hypocrisy and proof of the court's illegitimacy. It is the kind of thing one kinda expects when you appoint human beings with their biases and see their unconsidered off the cuff remarks (but this is why the shadow docket is dangerous ... people don't have the structure and argument that forces them to correct those beliefs).
3) These leaks are very bad.
---
In particular, I don't think the whole bit about him calling it an unprecedented regulatory expansion is all that unprecedented. I don't like it and I personally would prefer a far more formalist court that looks less at outcomes but every side talks about the harms (eg compare talk regarding overturning Roe about the massive harms that will be done to women). I think the concerns Vladeck focused on are more substantial.
I likewise have difficulty getting worked up over the memos. The question of how aggressively we want the Supreme Court to step in to stay executive actions it will likely find unconstitutional is an interesting one, but I detect precious little consideration of that issue as such in the New York Times stories about the memos and subsequent commentary. I don't know Kantor's politics, or Liptak's, but I can guess that they would not find scandalous in the least aggressive moves by the Supreme Court to stop Trump's unconstitutional actions, a change in usual operating practice for which they would no doubt find ample justification in the number and scale of such actions. I tend to agree with that, but then I can't profess retrospective outrage when the shoe is on my guy's foot. (And Obama is my guy, to be sure.)
When the justices do consider whether to step in, I want them to consider likelihood of success on the merits, a usual and sometimes dominant factor in considering interim relief of any sort in any court that Kantor/Liptak come close to suggesting is some sort of illegitimate prejudging.
Look, a majority of the Supreme Court was not going to go along with the Clean Power Plan and they didn't want it to become entrenched policy pending review. Their position may be wrong on the merits, but that's about the merits, not the propriety of interim relief as such.
Meanwhile, I'm not persuaded that Roberts's failure to consider irreparable harm to the environment is a gotcha. Likelihood of success is the overwhelming factor here. By the logic of this criticism, the Court would be obligated to engage in a searching review of all of the potentially positive effects of a policy and consider those in the balance. But if the action is, let's stipulate, pretty clearly unconstitutional by the Court's lights, no matter the policy's benefit, such a balancing is unnecessary.
If, for example, a Republican president were to purport to invalidate by executive order all state gun control laws on a misguided view of the Second Amendment, the Court need not consider the president's claim that more good guys with a gun would stop more bad guys with guns and thus prevent the irreparable harm of gun crimes. The occasion would not be one to consider the pros and cons of gun restrictions. It would be sufficient for the Court to determine that the president is clearly overreaching and, on that basis, stay the effect of the order pending review.
Would it be accurate to compare the February 2016 order on clean power with the April 2025 1 a.m. order in A.A.R.P. v. Trump enjoining removal of Venezuelans labeled TdA members? In both cases, it looks to me, SCOTUS intervened speedily not because of politics but because it had already said ‘No’ on the issue, and the executive was attempting to push similar conduct forward without judicial review.