Reactions to the Supreme Court’s Secret Shadow Docket Memos

On April 18, The New York Times dropped a bombshell with a story that offered a unique window into the political inner world of the U.S. Supreme Court. Based on a series of leaked memos, the story retraces the events leading up to the Court’s extraordinary decision to halt the enforcement of the Obama administration’s Clean Power Plan, a rule to limit greenhouse gas emissions from the power sector, even while the case was still pending in the D.C. Circuit Court of Appeals.

The decision is best remembered for giving birth to what is now recognized as the modern shadow docket — the controversial alternative case pipeline that the Supreme Court’s conservative majority have increasingly relied on to quickly decide matters based on their policy preferences without any transparency or the benefit of public reasoning for the case outcomes. The specifics of these memos are also worth reflecting on — both for what they reveal about how broken an institution the Supreme Court is and the light they shed on its decisions in other cases implicating the interests of the oil and gas industry.

The case at issue involved the first attempt to use authorities under the Clean Air Act to clamp down on climate-altering pollution from fossil-fueled power plants. Several industry groups immediately sued to block the rule in the D.C. Circuit, which rejected the initial attempt to stay the rule’s implementation while the litigation played out. Not to be deterred by this relatively normal result, the industry groups then took the extraordinary step of asking the Supreme Court to intervene and halt the rule.

A few quick reactions:

One-sided analysis: In considering this unusual request, Chief Justice John Roberts and Justice Samuel Alito failed to meaningfully balance the equities involved and instead focused entirely on the supposed economic harms that the fossil fuel industry and power sector might suffer if the rule remained enforceable pending the outcome of the case. At no point did they consider the harms that the public would suffer as a result of the nation’s ongoing failure to take meaningful action to address the climate crisis.

This failure was particularly noteworthy because just a few months earlier, the Court issued its decision in Michigan v. EPA, in which they faulted the agency for failing to weigh both the pros and cons before taking a regulatory action. There, Justice Antonin Scalia laid down the principle that reasoned decision-making requires attention to both sides of the ledger. Yet, the same five conservative Justices from the Michigan majority conspicuously abandoned fidelity to that principle in granting the emergency stay against the Clean Power Plan.

Lack of humility: One of the major problems with the shadow docket process is it elides careful consideration and argument, thereby increasing the chances of mistakes. That dynamic is fully on display here. Roberts’ memo is especially strident in its assertions that the Clean Power Plan would impose significant costs on the electric utilities based on limited evidence.

As it turns out, the Clean Power Plan’s standards were so modest in their requirements that the power sector came into compliance with them several years in advance, even though the rule never actually went into effect. In other words, prevailing market forces were “more stringent” than the rule’s requirements. Electric utilities faced no real harm in meeting the requirements. If they hadn’t been bypassed, the process of briefing and oral arguments likely would have afforded an opportunity to test industry’s self-serving claims that the rule’s requirements were economically ruinous.

Representation matters: Let’s say the Court did attempt to engage in a good faith attempt to balance the equities in deciding on the stay request. They considered both sides of the ledger and brought an appropriate degree of humility to the endeavor. Even then, there would still be reason to doubt the outcome. And that is because there is no real diversity among the Supreme Court’s membership.

For the most part, the Justices are all the products of elite institutions, which predispose them to the concerns afforded by the elite class they most closely identify with. We’ve never had a Supreme Court justice who grew up in Cancer Alley, for example, and I suspect we never will. So, it is doubtful the Court would ever be able to do a truly faithful assessment of something like the harms to the public that might arise from the delay of a pollution-control regulation.

Judicial ethics in oil and gas industry decisions: Both Roberts and Alito seemed to have their minds inalterably closed on the merits of the case. Given that similar concerns about pro-industry bias might extend to all of the Court’s conservative members, it raises troubling questions about whether litigants opposing the oil and gas industry in cases before the Court have a fair shot at prevailing where the facts and law would ordinarily suggest they should prevail. This abstract concern goes beyond the more concrete problem of extensive financial ties to specific firms within the industry, which induced Alito to recuse himself from Chevron. v. Plaquemines Parish, which the Court recently decided.

The Supreme Court is likely to face a steady stream of cases involving the oil and gas industry in the years ahead. Indeed, it has Suncor v. County Commissioners of Boulder County on the current docket — a case that relates to whether state and local governments can bring lawsuits against the oil and gas industry in state courts. These memos raise serious concerns about whether the Court can decide such cases fairly.

The Supreme Court is beyond fixing: Taken together, the leaked memos reveal an institution that wields way too much power and is too apt to act as a political body, rather than as neutral arbiters of justice. The Court’s crisis of legitimacy finds at least some of its roots in its constitutional structure, which means that real fixes will be difficult, if not impossible, to achieve in practice.

Still, there any many options for limiting the damage and relegating the Court’s stature to the margins as much as constitutionally possible. These include punitive reductions in the Court’s resources (staffing, clerks, and other funding), jurisdiction stripping, and empaneling “juries” of Supreme Court justices for specific cases.