Overview
- The New York Times published Saturday a 16-page set of internal memos from a five-day exchange in 2016 that led to a 5–4 order freezing President Barack Obama’s Clean Power Plan before lower courts ruled.
- The papers show Chief Justice John Roberts urging an immediate stay to prevent what he called irreversible shifts in the power sector, with Justices Samuel Alito and Anthony Kennedy backing swift action and invoking concerns about agency overreach and meaningful judicial review.
- Liberal justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor argued the Court should not rush, pressed for letting the D.C. Circuit proceed, and warned that an early stay would set a new procedural precedent.
- The memos illuminate the early logic of what later became known as the shadow docket, a path for emergency decisions that skip full briefing and argument and that has grown more common and consequential over the last decade.
- The source of the leak remains unknown, one Sotomayor memo copy shows unusual formatting and a likely date error, and commentators are weighing possible inquiries by the Court’s marshal or Congress as debate over the Court’s secrecy and legitimacy intensifies.