The New York Times dropped a bombshell on Saturday. Reporters Jodi Kantor and Adam Liptak obtained 16 pages of leaked internal memos from six Supreme Court justices, showing — in their own words, (mostly) on their own letterhead — exactly how Chief Justice John Roberts led the Court to invent what we now call the shadow docket. The memos, exchanged over five days in February 2016 as the justices scrambled to kneecap President Obama’s Clean Power Plan, are a remarkable window into how this institution actually works. Or rather, how sloppily it works when it wants to reach a predetermined result.
The documents are damning. Georgetown law professor and shadow docket chronicler Steve Vladeck — who wrote just two months ago that we’d “never know (at least, until our grandkids can read the justices’ internal papers)” how the shadow docket was born — put it plainly in his newsletter: Roberts applied the wrong legal standard, ignored the other side of the equities entirely, cited a BBC interview and a blog post as his “facts,” and then steamrolled his colleagues when Justices Breyer and Kagan proposed reasonable compromises. The deliberation was, in Vladeck’s words, “utterly impoverished.”
And the conservative legal commentariat’s response to all of this? Never mind the substance. WHO LEAKED IT?
Of course. OF COURSE.
We have been here before.
We watched this entire movie play out with the Dobbs leak. When Politico published Samuel Alito’s draft opinion overturning Roe v. Wade in May 2022, the reaction from the legal establishment was, as we noted at the time, to be “way more offended by the leak than by the content.” And as my colleague Joe Patrice observed immediately, the hand-wringing about the “gravest, most unforgivable sin” was a way for the legal establishment to avoid talking about what the opinion actually said — including Alito’s gleeful citation of a 17th-century jurist who also sentenced women to death for witchcraft. (But sure, it’s the leak that’s the legitimacy problem.)
Roberts launched a full investigation into the Dobbs leak. Clerk phone records were seized. The U.S. Marshal’s office ran the probe, blessed by an outside evaluator, Michael Chertoff, who happened to be Sam Alito’s former colleague on the Third Circuit, and who turned out to have a multi-year, seven-figure contract with the Court that nobody knew about at the time. The investigation found… nothing. Or said it found nothing. The nine most obvious stones were never turned over, because the Court’s “investigation” explicitly did not cover the justices themselves.
Meanwhile, the entire time, the overwhelming logic of the situation pointed to the leak coming from the conservative side. The motive was obvious: Joan Biskupic’s book Nine Black Robes later confirmed that the leak “calcified Alito’s draft as the opinion of the Court, taking momentum away from John Roberts’s death by a thousand cuts approach.” The leak froze the votes. It eliminated the possibility of compromise. It gave Alito’s scorched-earth opinion the permanence he wanted. In other words, the Dobbs leak was, functionally, a conservative operation — and the ensuing hysteria about finding the liberal leaker was a way to muddy the waters and prevent anyone from noticing that the most logical beneficiary was the guy who also allegedly leaked the Hobby Lobby outcome to a network of right-wing Christian activists years earlier.
The NYT’s shadow docket documents reveal something straightforwardly important: the birth of the modern emergency docket was sloppier, more ideologically driven, and less legally rigorous than the Court’s defenders have ever admitted. This isn’t speculation anymore… we’ve got it in the justices’ own words.
Roberts argued for blocking Obama’s Clean Power Plan using the wrong legal standard — he cited cases about staying lower court rulings pending appeal, but what was actually requested was staying executive agency action pending all judicial review, something the Court had never done before. He never acknowledged the novelty of what he was proposing. He cited a BBC interview and an EPA blog post — not exactly the vetted record one might hope for — as his factual basis. He reframed “irreparable harm” from its legal meaning into vague claims about “substantial and irreversible reordering of the domestic power sector,” while completely ignoring the irreparable harm the government and the environment would suffer from the Court’s intervention.
Justices Breyer and Kagan both proposed workable compromises. Roberts brushed them aside. Kennedy, apparently having decided that a stay was inevitable anyway, provided the fifth vote. And the rest is history — an unsigned, one-paragraph order issued on a February night. As Elbert Lin, West Virginia’s solicitor general at the time, told the Times: “This had never been done.”
The memos also demolish the conservative talking point that internal deliberations over emergency applications are rigorous and substantive. They aren’t. This was five days of brief memos, which included a weekend, with no in-person debate and no serious grappling with the novelty of what was being proposed. The memos are written in “the distinctive voice of the Justices,” as Josh Blackman, a constitutional law professor at South Texas College of Law Houston and Volokh Conspiracy contributor, noted, which is the one thing he got right before going off the rails. What they reveal is not rigor. It’s a small club of powerful people moving fast and breaking things.
Did the right-wing legal commentariat engage with any of this? Ha.
Instead, Jonathan Adler, a constitutional law professor at Case Western Reserve University School of Law and a Volokh Conspiracy contributor, published a post raising the possibility that the documents came from Sotomayor’s chambers, based on the fact that her memo in the tranche lacks official letterhead, has no signature, and has an apparently wrong date. He emphasized (“I stress the if”) the if, but the downstream commentariat apparently does not know what “if” means.
Blackman then followed up with his own posts suggesting investigators could reconstruct who had access to a “non-circulated” draft, and separately speculating about whether more leaks are coming. Mollie Hemingway tweeted: “Another major Supreme Court leak to a left-wing media outlet to support a left-wing narrative. Interesting.” RedState declared it part of a pattern of liberals “destroying the Court.” Twitchy aggregated a parade of social media posts flatly stating “It was Sotomayor.” A justice who was not even at the Court in 2016, Ketanji Brown Jackson, was also somehow fingered by posters whose racism apparently means they’re incapable of checking a calendar.
There’s just one problem. Adler’s “clue” isn’t much of a clue.
Vladeck pointed out on Bluesky that Sotomayor’s memo was almost certainly filed on Saturday, February 6 when she, her clerks, and any staff support would have been out of the office. A memo dashed off on a Saturday without secretarial support would naturally lack letterhead and a formal signature. That’s not a smoking gun. That’s a weekend. Adler responded directly: “I did not say clerk,” he noted his post pointed at chambers broadly, not a specific clerk. He then said, “I think there are a range of possibilities, and the clue may not be much of a clue.”
But before we move on, let’s give the terse “I did not say clerk,” a deeper look. When Vladeck pushed back on the Sotomayor-chambers theory by pointing out that no clerks or staff would have been around on a Saturday to format the memo properly, Adler didn’t say “fair point, that explains it.” He said he never blamed a clerk. Which leaves exactly one person in Sotomayor’s chambers who would unquestionably have been working on a Saturday while a major emergency application was live: Justice Sotomayor herself. Adler appears to be suggesting, without quite having the nerve to say it plainly, that a sitting Justice of the United States Supreme Court personally leaked decade-old internal deliberations to the New York Times.
It’s also, notably, a considerably harder claim to sustain. Vladeck went on to offer what he thinks is the actually interesting clue: the Times doesn’t have the Thomas, Scalia, or Ginsburg memos, suggesting the leaker didn’t have the full case file. That’s more consistent with someone who had access to a subset of circulated memos — which could describe a whole host of folks. The absence of a full file is not the profile of someone who raided a complete chambers archive, like a Supreme Court justice. It’s the profile of someone who had whatever landed in their specific inbox a decade ago (or any time since then) and held onto it.
Here’s the thing the right-wing commentariat does not want to discuss: the shadow docket has done more damage to the credibility of the Supreme Court than any leak ever could.
This is not a new observation. Justice Jackson said it herself at Yale Law School recently: when she clerked in 1999, the emergency docket was used “almost exclusively for death row inmates.” Today the Court “routinely opts to enter the fray, and it fails to acknowledge the harms that follow when the Supreme Court of the United States consistently and casually divests the lower courts of their equitable authority.” Unsigned, unexplained orders that reshape national policy — on immigration, on the environment, on federal workforce policy — issued after a few days of memo-trading. With no oral argument. Often with no reasoning at all.
The memos show that this was always the plan. Roberts, in 2016, decided that protecting conservative policy goals from an Obama regulation was worth blowing up the Court’s procedures. He did it with sloppy reasoning, cherry-picked facts, and a complete indifference to the harms on the other side of the ledger. *That* is the scandal. That has always been the scandal. The leak is just how we found out about it.
But yes, by all means — let’s talk about whether the memo had the right header font on a Saturday.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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