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 kabuki theater—so in that sense, yeah, I guess the memos weren’t that revelatory.
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.”
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.
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.
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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.
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 kabuki theater—so in that sense, yeah, I guess the memos weren’t that revelatory.
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.”
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.
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.
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.