The Non-Scandalous Clean Power Plan Memos

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. Jodi Kantor and Adam Liptak describe these as “Shadow Papers,” describe the order as “The birth of the Supreme Court’s shadow docket,” and so on. I have gotten a lot of excited questions about these, but in my view they don’t tell us anything particularly scandalous about the Court.

First, it’s true that the Clean Power Plan stay was something of a big deal at the time, and that with the benefit of hindsight it can be seen as something of an inflection point for the shadow docket. This is partly for boring technical reasons (the difference between staying an executive action directly versus staying a lower court decision), partly because the Clean Power Plan was a consequential policy, and partly because as things turned out, the Court did not end up ruling directly on the merits of the Obama Administration plan, so the stay ended up being the last word. But we basically knew all of this at the time. Here’s Lisa Heinzerling in 2016, The Supreme Court’s Clean-Power Power Grab.

Second, the Court’s reasoning — while perfectly debatable — is basically what the parties and others had argued at the time. The Court thought the administration’s legal interpretation was implausible, especially in light of the novelty and magnitude of the executive action at issue. It was also troubled by the fact that its earlier ruling in Michigan v. EPA had proved to be largely ineffective because the Court had waited too long to rule. Again, my memory is this is what careful observers believed was happening at the time.

It is somewhat interesting to have it confirmed and see exactly what the Justices said, and again there is plenty of room to argue that the major questions doctrine is wrong, that the Court should have been more passive, etc. (I don’t necessarily disagree.) But it doesn’t seem to me that we’ve acquired much new information, and nothing new that is especially troubling.

Third, some people seem to be scandalized somehow by Chief Justice Roberts’s role in this. But he is the circuit justice for the D.C. Circuit, so he would normally be the first person to circulate his views about the application and propose a resolution. And we have already known for over a decade that the Chief Justice supported granting the application. The fact that he wrote a memo saying so, for the somewhat obvious reasons, isn’t that much of a revelation.

Relatedly, while everybody likes to describe Chief Justice Roberts as a committed “institutionalist,” I think people regularly overread their own label, or at least misunderstand what it means. Institutionalism does not necessarily mean foregoing one’s own view of the law, and it certainly does not mean adopting the readers’ and the critics’ views instead of one’s own. And in any event, surely acting on the concern that the executive branch is openly circumventing the federal courts should count as institutionalist.

Fourth, it is worth remembering that this all happened ten years ago, and that the authors of the memos did not have the benefit of our hindsight. When the Clean Power Plan memos were written, Antonin Scalia was alive, Barack Obama was President, and the last two years of the Obama administration seemed as if they had marked an unprecedented rise in unilateral executive lawmaking which the Court was responding to. We now know that First Trump Administration, Biden Administration, and Second Trump Administration would each make the late Obama years look placid in comparison. We now know that the federal courts would get sucked (or willingly jump) into a cycle of litigation against the executive branch, for better or worse. But it is unclear whether all of this was foreseen or foreseeable in February 2016.

Fifth, the biggest scandal here is in fact the leaks themselves. Supreme Court leaks like these — including copies of confidential work product — are becoming more common. In my view, this is a bad thing. It will damage the institutional culture of the Court and do little good. But Jodi Kantor is a super-powered investigative reporter, determined to break through some of the Court’s norms of confidentiality, and I would bet on her succeeding. If so, we will have to become skilled at figuring out what these documents really tell us, and what they do not.