Some Questions About The SCOTUS Leak On the Clean Power Plan Case

The Dobbs leak and the Clean Power Plan leak are very different. The Dobbs leak was designed to impact a pending case. Whether you believe that a conservative leaked the opinion to lock down the votes, or that a liberal leaked the opinion to shift the votes, all roads leads to an attempt to influence the outcome. But the Clean Power Plan leak serves a very different purpose. The case was decided a decade ago. The actual legal issues are no longer important. The Clean Power Plan is long since dead. Rather, the ostensible purpose of this leak is to attack the Supreme Court’s legitimacy. As the saying goes, “Burn it down.”

Where did the leak came from? Within a few moments of reading the article, a name came to mind. It wasn’t that hard. No, I won’t say that name, at least at this moment. It is a very serious allegation to charge anyone with this act. And indeed, the person I have in mind may not have been the source who gave it to the New York Times, but a third party conveyed it. For all we know, this ten-year old set of documents has been passed around many times. Secrets in Washington, D.C. do not stay secrets for long. It is entirely possible many people knew about these records. We should all be careful before accusing anyone publicly. But I suspect this name will come out in the not-too-distant future.

What can be done about this leak? I’m sure Chief Justice is furious. He has not had a good week. This report comes only a few days after Justice Sotomayor attacked Justice Kavanaugh, declined to apologize the next day, and released what looked to be a forced apology. Moreover, the New York Times depicts the Chief in a very unflattering light as being the Anti-Prometheus of the Shadow Docket. (Prometheus sheds light, Roberts, apparently, did the opposite.) I suppose the Supreme Court Marshal can initiate another investigation. Records presumably exist about who had access to the various memos, including, as Jon Adler speculated, what appears ot be a non-circulated version of Justice Sotomayor’s memo. There is a limited universe of people who would have access to that memo. Reconstructing that distribution list a decade later may be hard, but it can be done. I suppose DOJ could investigate–assuming a federal law was violated–but the statute of limitation would have run years ago. The House or Senate Judiciary Committees could hold hearings and maybe even issue subpoenas.

What do we make of the Court’s internal procedures? Well, for starters, this is the first public reflection of how the Roberts Court handles emergency docket orders internally. Justice Kagan has complained that the Court decides emergency issues without the benefit of oral argument. Here, the Justices circulated and shared formal memoranda back and forth. They are fairly substantive and polished. Given the date stamps, these memos would have had to have been prepared in a span of hours. And the memos are written in the distinctive voice of the Justices, so the clerks are not driving the train here (other than pulling footnotes). The Supreme Court operates as a sort of a law firm, with partners shooting off memos to one another.

What about legitimacy? The thrust of the New York Times story is that the Clean Power Plan set the Court down a path of illegitimacy. But there is a different perspective. Allowing the D.C. Circuit to have the final say on the matter would weaken the Supreme Court’s legitimacy. All of the critics of the Supreme Court’s “shadow docket” are content when the D.C. Circuit or Ninth Circuit decides cases with expedited briefing and no oral argument. All lower courts have shadow dockets. Justice Alito’s memo speaks to this issue directly:

And this harm, once incurred, is by nature irreparable. Coal plants are not shuttered – nor solar plants purchased -at the drop of a hat. Of course, the Administrator knows this, which is why she effectively implied that, if the rule is allowed to continue in force, judicial review will be beside the point. That leads me to what is, in my view, the most pressing reason to grant a stay. A failure to stay this rule threatens to render our ability to provide meaningful judicial review- and by extension, our institutional legitimacy- a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. Ifwe fail to stay the rule and maintain the status quo, our resolution ofthe merits will not matter because the regulated parties will have complied. Instead of robust judicial review, our opinion will be a mere postscript.

Either the Supreme Court is supreme or it is not. Chief Judge Garland and his colleagues should not have had the final say on this matter. Chief Justice Roberts would.

I’ll close by noting the elephant in the room–or is it the donkey? In February 2016, it looked like Hillary Clinton would win the election. I’m sure the Chief thought there would be plenty of time to litigate this issue during the next administration. Of course, as history relates, Trump won.

I’ll talk about the substantive legal analysis from the Chief Justice and Justice Kagan in another post.

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