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Last week, the New York Times divulged a fresh trove of confidential internal memoranda between the Supreme Court justices. The documents allegedly show that Chief Justice John Roberts and his conservative colleagues have abused the Court’s technical procedures to block the agenda of Democratic presidents and to favor Republicans. While this accusation can only succeed by ignoring the broader context of the Court’s work, it heralds the latest progressive attack on the Court as a stabilizing institution in our national politics.
In February 2016, the Court temporarily blocked the Obama administration from enforcing its “Clean Power Plan.” While the Court would eventually strike down the grand plan to rewire America’s energy grid when it reappeared in its Biden guise, in February 2016 the justices only issued an emergency stay to freeze the government plan before lower courts could rule.
The order, which prompted dissenting votes from the liberal justices, garnered little attention at the time but allegedly marked the birth of the “shadow docket.” Using this new procedure, the Court now intervenes quickly to issue emergency orders that can halt executive action before lower court review, which can effectively stop liberal presidents’ agendas in their tracks.
The New York Times alleges that secret memos show this 2016 decision came about not because of concerns over the Obama administration’s abuse of power, but because of Chief Justice Roberts’ campaign against a liberal president. The report claims that Roberts “acted as a bulldozer in pushing to stop Mr. Obama’s plan to address the global climate crisis” and that the memos show the chief justice to be “angry” and “irritated” with the government.
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The Times report leaves out many important facts in order to portray the Court as using the shadow docket to pursue a partisan agenda. It claims the order represented a sharp break from Court practice, when in fact the justices regularly use this procedure to review capital executions and even granted such a stay in the Little Sisters of the Poor’s challenge to Obamacare just a few years earlier. The Times suggests that the conservative Roberts Court uses these stays to stop Democratic presidents. It does not provide examples of the Court’s use of the same emergency stays to frustrate parts of President Trump’s agenda as well. The Court, for example, has issued stays against Trump’s use of the Alien Enemies Act to deport Venezuelans and against his dispatch of federal troops to inner cities.
The emergency stays do not represent an unprecedented weapon wielded by a conservative Court, but rather a response to executive branch regulations that seek to achieve their objectives before courts can intervene. In the Clean Power Plan case itself, the Obama administration hoped that its regulations would force the energy industry to decide on the massive investments required before the case could reach the Supreme Court.
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But the Times report represents a greater affront than just a leak about procedural tussling within the Supreme Court. Last week’s leak of the Court’s memos represents the third breach of the Court’s confidential deliberations in the last four years. It began with the leak — for the first time in American history — of a draft Supreme Court opinion in Dobbs in 2022, which overturned Roe v. Wade. It continued with a 2024 New York Times story based on documents and interviews that detailed the deliberations behind Trump v. United States, which held the former president immune from federal prosecution for his official acts.
These leaks represent the latest escalation in the use of political tactics against the Court. The Court has never had a draft opinion leak to the press; indeed, it is difficult to recall any leak of an opinion occurring at any federal court, ever. But leaking is all too common at the White House, cabinet agencies and Congress, even of the most sensitive, classified information. The Dobbs leak itself triggered harassment of the conservative justices at their homes and culminated in an assassination attempt against Justice Brett Kavanaugh in the hopes it would change the outcome of the vote.
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These leaks and the accompanying political pressure undermine the independence and integrity of the federal courts under our Constitution’s separation of powers. While liberals once defended the judiciary as an engine for social change in the wake of Brown v. Board of Education, which struck down racial segregation, they have recently turned against the Supreme Court as Republican presidents have sought to appoint judges committed to originalist principles. Conservatives, meanwhile, have held a far more skeptical attitude toward the Court’s claim of supremacy in interpreting the Constitution. Nevertheless, the Court deserves a robust defense not because of its view on abortion, but because it stands as a valuable institutional limit on simple majority rule.
Progressives are taking unprecedented measures against the justices because of their specific votes on abortion, transgender rights or presidential power, regardless of the logic or reasoning of their opinions. Liberals support or attack the Court based on how decisions affect the interests of the groups — minorities, women, environmental organizations — that compose their political coalition. The only difference between a judge and a politician is that politicians don’t get to wear robes.
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Progressives find law and facts to be mostly smoke and mirrors. Courts should not reach correct outcomes by interpreting the law; instead, progressives say, they should make policy due to the inherent malleability of language and the rapid changes in society and the economy. To them, judges enjoy raw political power in determining society’s winners and losers.
These leaks threaten the careful line between law and politics. They make the Court an object in the arena of electoral politics. They also threaten to turn the Court into a political actor internally. If leaks become the norm in important cases, clerks could begin disclosing the Court’s internal arguments and votes, the changing coalitions around different drafts, and even the thought processes of individual justices. Justices might take explicit political factors into account in their decisions.
For progressives who claim they are defending our institutions from a renegade president, their attacks on the Court deliberately undermine one of the core elements of our constitutional order.
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