Chief Justice John Roberts Sounds a Lot Like the Fossil Fuel Lobby

Recently published memos from the early days of the shadow docket show the justice seemingly in thrall to the arguments of corporate polluters.

Over the weekend, the New York Times published a fairly explosive investigation into the birth of the Supreme Court’s modern shadow docket. Traditionally used for procedural decision-making, the shadow docket has, over the last several years, acted as a back door for SCOTUS to make key policy decisions more or less on the fly—or at least without spending months or years considering briefs and oral arguments and writing out signed and detailed opinions. The Times’ reporting focuses on what was, at the time, a shocking move: the unexplained decision, deliberated over for just a few days, to grant a stay of the Obama administration’s Clean Power Plan, which would have established a national system for controlling greenhouse gas emissions under the Clean Air Act. If Obama’s rule had gone into effect, power plants would have had to reduce their emissions in line with state-specific targets, designed to meet federal goals. Thanks to SCOTUS, the plan was never implemented. The Court’s use of the shadow docket signaled both a bleak future for the Clean Power Plan, and a radical shift in how that body makes decisions. As my colleague Matt Ford wrote this week, the shadow docket has, in recent memory, “transformed from a simple administrative mechanism into a major roadblock for progressive governance.”

At the core of the Times’ reporting are 16 pages of previously unpublished discussions among the justices. While these may not be the full extent of their debate on the matter, as Ford points out, they show Chief Justice John Roberts forcefully arguing to bypass precedent and grant petitioners’ request for a stay on the Clean Power Plan before the legal merits of the rule had been decided on by a lower court. The Trump administration came to power a few months later. Before the case could be formally decided, the White House got to work dismantling the Clean Power Plan from the inside. Eventually, in 2022, SCOTUS’s ruling in West........

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