There are caveats, of course: It is impossible to know whether these memos, from a 2016 climate-change case, represent the entire conversation between the justices. No memos were published from Justices Antonin Scalia, Clarence Thomas, or Ruth Bader Ginsburg. And while it is tempting to think they are a complete snapshot of the court’s deliberations, there are signs that they may not be. One memo omits a page with the signature line of the justice who wrote it; we can only infer that it is from Justice Sonia Sotomayor because Justice Samuel Alito later references her by name when describing its contents.
The shadow docket’s origins are not as mysterious as its workings. The Supreme Court has used its motions docket for the last decade to shape the outcome of major policies through selective stays and injunctions. Legal scholars and court watchers have known all along that the first real step towards this dynamic came in West Virginia v. EPA in 2016.
At the time, the D.C. Circuit Court of Appeals was already considering whether the EPA had exceeded its powers under the Clean Air Act when promulgating the CPP. The plaintiffs had asked the D.C. Circuit to stay the CPP from taking effect during litigation, but it declined to do so in January 2016. In response, the plaintiffs then asked Roberts to grant a stay instead.
Beyond the merits docket, however, the Supreme Court is also constantly at work on a variety of administrative and procedural motions for each case. William Baude, a University of Chicago law professor, first described this workload in 2015 as the “shadow docket,” which he used to refer to “a range of orders and summary decisions that defy its normal procedural regularity.” As originally used by Baude, “shadow” did not mean “sinister,” but rather “partially hidden”: Court watchers could see the outcomes of these decisions through the court’s orders, but not the rationale behind them because the justices did not write opinions to explain them. “People criticize the Court’s merits cases for being political, unprincipled, or opaque,” Baude explained in the 2015 law-review article. “But those criticisms may be targeted at the wrong part of the Court’s docket. It is the non-merits work that should most raise questions of consistency and transparency.”
In this role, a circuit justice typically gets the first look at each motion filed in a case. Their job is to dispense with the easiest ones—when one side requests additional time to file a reply brief, for example—and refer more substantial motions to the rest of their colleagues. When the Justice Department requests a spot in oral arguments in a merits case that they aren’t already involved in, for example, all nine justices will consider that request. As a result, the circuit justices act like a filter to ensure that all nine members need not constantly meet to decide trivial administrative matters.
None of those factors were at play in the West Virginia case. Roberts instead argued that the court should intervene because an EPA rule on mercury in a previous case had led to structural changes by polluters, even though it was later partially struck down by the Supreme Court. In that 2014 case, Utility Air Regulatory Group v. EPA, the court began to sketch out what would later become the major-questions doctrine.
This is less persuasive than it sounds. First, as one of the other justices noted in a later memo, most of the CPP’s requirements wouldn’t kick in for years, giving plenty of time for courts to resolve legal questions. Second, Roberts had been pretty flexible on this subject before. In a shadow-docket order in a 2012 case involving a warrantless DNA-swabbing program for Maryland arrestees, Roberts declined in his circuit-justice capacity to block the state law from taking effect while the justices considered the case. (They eventually upheld it.)
That reasoning was absent in West Virginia, and unsurprisingly so: The Roberts court rules against the EPA so frequently and so energetically that one almost wonders if they wish they could abolish it altogether. The court’s liberals at the time tried to mollify Roberts’s sweeping demands but were unsuccessful. Justice Stephen Breyer noted, with no small amount of understatement, it was “unusual for this court to issue a stay of an agency’s order during the time that the court of appeals is considering its lawfulness.” Now it is so routine, at least when Democrats hold the White House, that the absence of a stay is a notable exception.
Kennedy explained that he saw no harm in imposing a stay because the court would likely issue one when it likely took up the case later that year. “The memoranda from the conference have been very helpful,” he wrote. “In my view, a stay would be granted in four to six months in any event, and fairness to the parties counsels that we should grant it now.”
Had the Supreme Court followed its normal practices, the CPP would have stayed on the books for at least two years before the Trump administration could have repealed it—and perhaps longer, depending on how litigation over the repeal went. The United States could have made significant progress in reducing carbon emissions from one of their most pernicious sources. The Obama administration would have been able to carry out their governing mandate from the electorate.
This leak arguably represents an even greater breach of the court’s secrecy than when Politico obtained a copy of Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization in 2022. That draft represented the end of the court’s internal deliberations; these memos represent the beginning of it. Prominent law firms offer hundreds of thousands of dollars in bonuses to former Supreme Court clerks to get the insights into each justice’s thinking that these memos offer.
For now, we can only regret the court’s failures that have already taken place. Future generations will lament the Supreme Court’s departure from its own practices, both in practical terms and in democratic ones. The court these days is remarkably willing to let the Trump administration govern the country however it wishes nowadays, so long as it does not impose billions of dollars in illegal tariffs or try to fire a member of the Federal Reserve Board of Governors. I look forward to seeing if it maintains this expansive approach during the next Democratic administration.
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