Overview
- Saturday’s New York Times publication of 16 internal memos from February 2016 revealed how the justices used a rapid, private exchange to weigh an emergency stay, in what many scholars identify as the start of today’s “shadow docket,” a stream of fast, often unexplained orders that decide major disputes.
- The papers show Chief Justice John Roberts pressed to halt President Obama’s Clean Power Plan immediately, invoking the major‑questions doctrine and warning of irreparable, industry‑wide changes based on EPA statements and interviews, culminating in a 5–4 one‑paragraph stay in February 2016.
- The memos capture a sharp split, with Roberts and Justices Alito, Scalia and Thomas favoring a stay and Justice Anthony Kennedy providing the pivotal vote, while Justices Breyer, Ginsburg, Sotomayor and Kagan objected to the speed and urged letting the D.C. Circuit proceed on its set schedule.
- The source of the leak remains unknown, and one Sotomayor-chambers memo lacked letterhead and carried an apparent wrong date, a quirk commentators say suggests access to a non‑final draft as observers note that any inquiry a decade later would face practical and legal limits.
- Reaction has widened an ideological divide over the court’s secrecy and legitimacy, with left-leaning outlets faulting Roberts’ push and right-leaning analysts defending the legal rationale or criticizing the Times’ framing, even as the documents offer a rare look at how emergency orders can freeze national policy before full review.