#ICYMI: Yesterday's "One First" took a deep dive into Saturday's @nytimes.com scoop on the behind-the-scenes machinations in the February 2016 Clean Power Plan ruling—and what the memos tell us about how #SCOTUS handles emergency applications in general, & about Chief Justice Roberts, in particular:
As ever, @kathryn1.bsky.social was great.
Plenty of criticism on the right of the #SCOTUS leaker and the Times’s reporting, but has anyone actually responded to the argument that Roberts’s assessment of “irreparable harm” and his refusal to balance the equities is completely inconsistent with his subsequent behavior in all the Trump cases?
Always good, particularly excellent today 👇
First, Burwell wasn't a stay of a regulation before lower courts had reviewed it. Everyone agrees that the CPP cases was the first time the Court had ever done that.
Second, in Burwell, it was narrow relief *from* a federal regulation for a specific set of parties, not blocking the whole program...
I'll be joining @chriscillizza.bsky.social at 11:30 ET for a Substack Live conversation about #SCOTUS, and especially Saturday's @nytimes.com reporting on the leaked memos from the Clean Power Plan cases.
Join us then here:
open.substack.com/live-stream/...
"In the first major case in which the Court granted emergency relief as a means of shaping nationwide policy, it turns out that the justice who led the charge was the one who was doing quite a bit more than calling balls and strikes."
Me on Saturday's @nytimes.com scoop in today's "One First":
"In the first major case in which the Court granted emergency relief as a means of shaping nationwide policy, it turns out that the justice who led the charge was the one who was doing quite a bit more than calling balls and strikes."
Me on Saturday's @nytimes.com scoop in today's "One First":
A proposed book cover for the Court We Need drawn by our 10-year-old daughter
Do we think @penguinbooksusa.bsky.social accepts proposed cover submissions from 10-year-olds?
I talk about the marriage cases in detail in Chapter 2 of the book…
I know, I know.
Also, no one actually claims there were no grants of emergency relief before 2016. It’s the same kind of claim as saying someone like me is “opposed to the shadow docket.”
They’re knocking down the most superficial straw men and just hoping no one notices.
Me: Writes a book documenting in detail how #SCOTUS’s approach to emergency applications shifted in the mid-2010s, and why those shifts are problematic without regard to the results.
SI: But a 6-3 Court once vacated part of a Fifth Circuit stay in a specific Texas abortion case. So checkmate, libs!
This edition of Sunday morning newsletter writing comes from a 10U volleyball tournament at the Maryland Juniors Sports Center.
At least some of those now insisting that there's no news in the leaked memos about how #SCOTUS decided the Clean Power Plan cases have previously responded to criticisms of unexplained shadow docket rulings by insisting that the Court engages in robust and rigorous dialogue behind the scenes.
Hmm.
"How I Learned To Stop Worrying and Love the Shadow Docket."
You and I agree (about much of this, I imagine).
Apologies. I misunderstood your post to be suggesting it was a clerk.
My best bet is that what the Times has is the same version of Sotomayor's memo that is in every other chambers' files.
The more interesting clue, to me, is that the Times doesn't have the Thomas, Scalia, or Ginsburg memos--suggesting that the leaker may not have had access to the entire case file.
To @jadler1969.bsky.social's claim that the leaker might've been a Sotomayor clerk because her memo is the only one not on letterhead, her memo was almost certainly filed on Saturday, February 6—when Sotomayor, her clerks, or, at the very least, any staff support would have been out of the office.
My best bet is that what the Times has is the same version of Sotomayor's memo that is in every other chambers' files.
The more interesting clue, to me, is that the Times doesn't have the Thomas, Scalia, or Ginsburg memos--suggesting that the leaker may not have had access to the entire case file.
For what it's worth, there's an obvious alternative explanation for why Justice Sotomayor's memo isn't on letterhead and the others are. Assuming "February 16" was a typo, she probably filed her memo on February *6,* which was a Saturday--when neither she nor her clerks were necessarily in chambers.
That is just one of the many problems with what the Court did.
Oh sweet summer child.
Jamal is too nice to say "utter hypocrisy," but that's what this is.
Today's #SCOTUS treats *all* coercive relief against the executive branch as imposing irreparable harm on the government. For that proposition, they cite a 2014 opinion by ... Chief Justice Roberts.
Its absence here is deafening.
Someone really ought to write a book about the significance of #SCOTUS doing so many major things through unsigned and unexplained rulings, and how so much of it really is a recent phenomenon.
Are you suggesting that the Court is twisting irreparable harm to suit its purposes, and isn’t being consistent in how it either measures or balances this critical concept?
