The
New
York
Times
dropped
a
bombshell
on
Saturday.
Reporters
Jodi
Kantor
and
Adam
Liptak
obtained
16
pages
of
leaked
internal
memos
from
six
Supreme
Court
justices,
showing
—
in
their
own
words,
(mostly)
on
their
own
letterhead
—
exactly
how
Chief
Justice
John
Roberts
led
the
Court
to
invent
what
we
now
call
the
shadow
docket.
The
memos,
exchanged
over
five
days
in
February
2016
as
the
justices
scrambled
to
kneecap
President
Obama’s
Clean
Power
Plan,
are
a
remarkable
window
into
how
this
institution
actually
works.
Or
rather,
how
sloppily
it
works
when
it
wants
to
reach
a
predetermined
result.
The
documents
are
damning.
Georgetown
law
professor
and
shadow
docket
chronicler
Steve
Vladeck
—
who
wrote
just
two
months
ago
that
we’d
“never
know
(at
least,
until
our
grandkids
can
read
the
justices’
internal
papers)”
how
the
shadow
docket
was
born
—
put
it
plainly
in
his
newsletter:
Roberts
applied
the
wrong
legal
standard,
ignored
the
other
side
of
the
equities
entirely,
cited
a
BBC
interview
and
a
blog
post
as
his
“facts,”
and
then
steamrolled
his
colleagues
when
Justices
Breyer
and
Kagan
proposed
reasonable
compromises.
The
deliberation
was,
in
Vladeck’s
words,
“utterly
impoverished.”
And
the
conservative
legal
commentariat’s
response
to
all
of
this?
Never
mind
the
substance.
WHO
LEAKED
IT?
Of
course.
OF
COURSE.
We
have
been
here
before.
We
watched
this
entire
movie
play
out
with
the
Dobbs
leak.
When
Politico
published
Samuel
Alito’s
draft
opinion
overturning
Roe
v.
Wade
in
May
2022,
the
reaction
from
the
legal
establishment
was,
as
we
noted
at
the
time,
to
be
“way
more
offended
by
the
leak
than
by
the
content.”
And
as
my
colleague
Joe
Patrice
observed
immediately,
the
hand-wringing
about
the
“gravest,
most
unforgivable
sin”
was
a
way
for
the
legal
establishment
to
avoid
talking
about
what
the
opinion
actually
said
—
including
Alito’s
gleeful
citation
of
a
17th-century
jurist
who
also
sentenced
women
to
death
for
witchcraft.
(But
sure,
it’s
the
leak
that’s
the
legitimacy
problem.)
Roberts
launched
a
full
investigation
into
the
Dobbs
leak.
Clerk
phone
records
were
seized.
The
U.S.
Marshal’s
office
ran
the
probe,
blessed
by
an
outside
evaluator,
Michael
Chertoff,
who
happened
to
be
Sam
Alito’s
former
colleague
on
the
Third
Circuit,
and
who
turned
out
to
have
a
multi-year,
seven-figure
contract
with
the
Court
that
nobody
knew
about
at
the
time.
The
investigation
found…
nothing.
Or
said
it
found
nothing.
The
nine
most
obvious
stones
were
never
turned
over,
because
the
Court’s
“investigation”
explicitly
did
not
cover
the
justices
themselves.
Meanwhile,
the
entire
time,
the
overwhelming
logic
of
the
situation
pointed
to
the
leak
coming
from
the
conservative
side.
The
motive
was
obvious:
Joan
Biskupic’s
book
Nine
Black
Robes
later
confirmed
that
the
leak
“calcified
Alito’s
draft
as
the
opinion
of
the
Court,
taking
momentum
away
from
John
Roberts’s
death
by
a
thousand
cuts
approach.”
The
leak
froze
the
votes.
It
eliminated
the
possibility
of
compromise.
It
gave
Alito’s
scorched-earth
opinion
the
permanence
he
wanted.
In
other
words,
the
Dobbs
leak
was,
functionally,
a
conservative
operation
—
and
the
ensuing
hysteria
about
finding
the
liberal
leaker
was
a
way
to
muddy
the
waters
and
prevent
anyone
from
noticing
that
the
most
logical
beneficiary
was
the
guy
who
also
allegedly
leaked
the
Hobby
Lobby
outcome
to
a
network
of
right-wing
Christian
activists
years
earlier.
The
NYT’s
shadow
docket
documents
reveal
something
straightforwardly
important:
the
birth
of
the
modern
emergency
docket
was
sloppier,
more
ideologically
driven,
and
less
legally
rigorous
than
the
Court’s
defenders
have
ever
admitted.
This
isn’t
speculation
anymore…
we’ve
got
it
in
the
justices’
own
words.
Roberts
argued
for
blocking
Obama’s
Clean
Power
Plan
using
the
wrong
legal
standard
—
he
cited
cases
about
staying
lower
court
rulings
pending
appeal,
but
what
was
actually
requested
was
staying
executive
agency
action
pending
all
judicial
review,
something
the
Court
had
never
done
before.
He
never
acknowledged
the
novelty
of
what
he
was
proposing.
He
cited
a
BBC
interview
and
an
EPA
blog
post
—
not
exactly
the
vetted
record
one
might
hope
for
—
as
his
factual
basis.
He
reframed
“irreparable
harm”
from
its
legal
meaning
into
vague
claims
about
“substantial
and
irreversible
reordering
of
the
domestic
power
sector,”
while
completely
ignoring
the
irreparable
harm
the
government
and
the
environment
would
suffer
from
the
Court’s
intervention.
Justices
Breyer
and
Kagan
both
proposed
workable
compromises.
Roberts
brushed
them
aside.
Kennedy,
apparently
having
decided
that
a
stay
was
inevitable
anyway,
provided
the
fifth
vote.
And
the
rest
is
history
—
an
unsigned,
one-paragraph
order
issued
on
a
February
night.
As
Elbert
Lin,
West
Virginia’s
solicitor
general
at
the
time,
told
the
Times:
“This
had
never
been
done.”
The
memos
also
demolish
the
conservative
talking
point
that
internal
deliberations
over
emergency
applications
are
rigorous
and
substantive.
They
aren’t.
This
was
five
days
of
brief
memos,
which
included
a
weekend,
with
no
in-person
debate
and
no
serious
grappling
with
the
novelty
of
what
was
being
proposed.
The
memos
are
written
in
“the
distinctive
voice
of
the
Justices,”
as
Josh
Blackman,
a
constitutional
law
professor
at
South
Texas
College
of
Law
Houston
and
Volokh
Conspiracy
contributor,
noted,
which
is
the
one
thing
he
got
right
before
going
off
the
rails.
What
they
reveal
is
not
rigor.
It’s
a
small
club
of
powerful
people
moving
fast
and
breaking
things.
Did
the
right-wing
legal
commentariat
engage
with
any
of
this?
Ha.
Instead,
Jonathan
Adler,
a
constitutional
law
professor
at
Case
Western
Reserve
University
School
of
Law
and
a
Volokh
Conspiracy
contributor,
published
a
post
raising
the
possibility
that
the
documents
came
from
Sotomayor’s
chambers,
based
on
the
fact
that
her
memo
in
the
tranche
lacks
official
letterhead,
has
no
signature,
and
has
an
apparently
wrong
date.
He
emphasized
(“I
stress
the
if”)
the
if,
but
the
downstream
commentariat
apparently
does
not
know
what
“if”
means.
Blackman
then
followed
up
with
his
own
posts
suggesting
investigators
could
reconstruct
who
had
access
to
a
“non-circulated”
draft,
and
separately
speculating
about
whether
more
leaks
are
coming.
Mollie
Hemingway
tweeted:
“Another
major
Supreme
Court
leak
to
a
left-wing
media
outlet
to
support
a
left-wing
narrative.
Interesting.”
RedState
declared
it
part
of
a
pattern
of
liberals
“destroying
the
Court.”
Twitchy
aggregated
a
parade
of
social
media
posts
flatly
stating
“It
was
Sotomayor.”
A
justice
who
was
not
even
at
the
Court
in
2016,
Ketanji
Brown
Jackson,
was
also
somehow
fingered
by
posters
whose
racism
apparently
means
they’re
incapable
of
checking
a
calendar.
There’s
just
one
problem.
Adler’s
“clue”
isn’t
much
of
a
clue.
Vladeck
pointed
out
on
Bluesky
that
Sotomayor’s
memo
was
almost
certainly
filed
on
Saturday,
February
6
when
she,
her
clerks,
and
any
staff
support
would
have
been
out
of
the
office.
A
memo
dashed
off
on
a
Saturday
without
secretarial
support
would
naturally
lack
letterhead
and
a
formal
signature.
That’s
not
a
smoking
gun.
That’s
a
weekend.
Adler
responded
directly:
“I
did
not
say
clerk,”
he
noted
his
post
pointed
at
chambers
broadly,
not
a
specific
clerk.
He
then
said,
“I
think
there
are
a
range
of
possibilities,
and
the
clue
may
not
be
much
of
a
clue.”
But
before
we
move
on,
let’s
give
the
terse
“I
did
not
say
clerk,”
a
deeper
look.
When
Vladeck
pushed
back
on
the
Sotomayor-chambers
theory
by
pointing
out
that
no
clerks
or
staff
would
have
been
around
on
a
Saturday
to
format
the
memo
properly,
Adler
didn’t
say
“fair
point,
that
explains
it.”
He
said
he
never
blamed
a
clerk.
Which
leaves
exactly
one
person
in
Sotomayor’s
chambers
who
would
unquestionably
have
been
working
on
a
Saturday
while
a
major
emergency
application
was
live:
Justice
Sotomayor
herself.
Adler
appears
to
be
suggesting,
without
quite
having
the
nerve
to
say
it
plainly,
that
a
sitting
Justice
of
the
United
States
Supreme
Court
personally
leaked
decade-old
internal
deliberations
to
the
New
York
Times.
It’s
also,
notably,
a
considerably
harder
claim
to
sustain.
Vladeck
went
on
to
offer
what
he
thinks
is
the
actually
interesting
clue:
the
Times
doesn’t
have
the
Thomas,
Scalia,
or
Ginsburg
memos,
suggesting
the
leaker
didn’t
have
the
full
case
file.
That’s
more
consistent
with
someone
who
had
access
to
a
subset
of
circulated
memos
—
which
could
describe
a
whole
host
of
folks.
The
absence
of
a
full
file
is
not
the
profile
of
someone
who
raided
a
complete
chambers
archive,
like
a
Supreme
Court
justice.
It’s
the
profile
of
someone
who
had
whatever
landed
in
their
specific
inbox
a
decade
ago
(or
any
time
since
then)
and
held
onto
it.
Here’s
the
thing
the
right-wing
commentariat
does
not
want
to
discuss:
the
shadow
docket
has
done
more
damage
to
the
credibility
of
the
Supreme
Court
than
any
leak
ever
could.
This
is
not
a
new
observation.
Justice
Jackson
said
it
herself
at
Yale
Law
School
recently:
when
she
clerked
in
1999,
the
emergency
docket
was
used
“almost
exclusively
for
death
row
inmates.”
Today
the
Court
“routinely
opts
to
enter
the
fray,
and
it
fails
to
acknowledge
the
harms
that
follow
when
the
Supreme
Court
of
the
United
States
consistently
and
casually
divests
the
lower
courts
of
their
equitable
authority.”
Unsigned,
unexplained
orders
that
reshape
national
policy
—
on
immigration,
on
the
environment,
on
federal
workforce
policy
—
issued
after
a
few
days
of
memo-trading.
With
no
oral
argument.
Often
with
no
reasoning
at
all.
The
memos
show
that
this
was
always
the
plan.
Roberts,
in
2016,
decided
that
protecting
conservative
policy
goals
from
an
Obama
regulation
was
worth
blowing
up
the
Court’s
procedures.
He
did
it
with
sloppy
reasoning,
cherry-picked
facts,
and
a
complete
indifference
to
the
harms
on
the
other
side
of
the
ledger.
*That*
is
the
scandal.
That
has
always
been
the
scandal.
The
leak
is
just
how
we
found
out
about
it.
But
yes,
by
all
means
—
let’s
talk
about
whether
the
memo
had
the
right
header
font
on
a
Saturday.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@[email protected].