The Supreme Court’s Shadow-Docket Secrets Have Been Spilled

The leaked memos from a 2016 EPA case expose the spurious reasoning behind one of the justices’ most consequential decisions of the past decade.

The New York Times on Saturday published a series of Supreme Court internal memos that amount, in hindsight, to a major milestone in the decline of American democracy. The closely held memos show how the justices’ shadow docket—particularly their use of brief, unsigned decisions on cases before they’ve even reached the court—transformed from a simple administrative mechanism into a major roadblock for progressive governance.

There are caveats, of course: It is impossible to know whether these memos, from a 2016 climate-change case, represent the entire conversation between the justices. No memos were published from Justices Antonin Scalia, Clarence Thomas, or Ruth Bader Ginsburg. And while it is tempting to think they are a complete snapshot of the court’s deliberations, there are signs that they may not be. One memo omits a page with the signature line of the justice who wrote it; we can only infer that it is from Justice Sonia Sotomayor because Justice Samuel Alito later references her by name when describing its contents.

Even if this is not the entire discussion from the justices, it is nonetheless damning for them and for the shadow docket itself. The memos show how Chief Justice John Roberts pressured the other justices to lean heavily in favor of the oil and gas industry so they could kneecap a major EPA climate-change regulation, even as the court’s liberal justices warned that it was an unprecedented and unjustified expansion of the court’s powers.

The shadow docket’s origins are not as mysterious as its workings. The Supreme Court has used its motions docket for the last decade to shape the outcome of major policies through selective stays and injunctions. Legal scholars and court watchers have known all along that the first real step towards this dynamic came in West Virginia v. EPA in 2016.

In February 2016, the state of West Virginia, a coalition of other Republican-led states, and major energy companies were mounting a legal challenge to the Obama administration’s Clean Power Plan, or CPP. The Environmental Protection Agency had enacted the CPP through its regulatory progress under its Clean Air Act authority to regulate carbon emissions from coal-fired power plants. If it had gone into effect, it could have significantly reduced U.S. carbon emissions and boosted the nation’s efforts to curb climate change.

At the time, the D.C. Circuit Court of Appeals was already considering whether the EPA had exceeded its powers under the Clean Air Act when promulgating the CPP. The plaintiffs had asked the D.C. Circuit to stay the CPP from taking effect during litigation, but it declined to do so in January 2016. In response, the plaintiffs then asked Roberts to grant a stay instead.

Americans are most familiar with the court’s merits docket—the big-name cases where the justices review briefs from litigants and interested third parties, hold oral arguments where they can publicly ask questions of each side, and then write formal opinions that are........

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