The Substance of the Clean Power Plan Memos

I’ve often said that my favorite Chief Justice Roberts opinions are his dissent. Why? I know he actually believes what he is writing. His majority opinions are always so guarded, as he is trying to keep the Court together and maintain the “institutionalist” credo. But the dissents are authentic. This was especially true in Roberts’s solo dissent in Uzuegbunam. The same rule applies to Roberts’s internal communications that are not meant for public consumption. Unfortunately, we only find out about these internal communiques through leaks. Most recently, I was impressed when Roberts told Judge Boasberg to chill out. (Query whether that interaction might require the Chief’s recusal in the appeal of JEB’s contempt crusade.)

The latest New York Times reporting fits the mold as well. Here, we get insights into how Roberts views emergency docket relief.

First, Roberts addresses one factor of the balancing test: will four Justices grant cert?

I have little doubt that whatever the outcome of the proceedings in the D. C. Circuit, there will be a petition for cert. I find it very likely that four this members of Court will vote to grant the petition, again regardless of the outcome below.

This element has long bothered me. There is an easy way to know if four Justices will vote to grant cert: ask them. Still, here we see Roberts speculating on what three of his other colleagues would do. Frankly, if five Justices are willing to grant a stay, that is proof positive there are four votes for cert. So this factor seems somewhat irrelevant.

Second, Roberts sketches out his views on the Major Questions doctrine, in light of UARG:

As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a “long-extant statute” to “bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization.” Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014). The applicants also raise a strong argument that regulation of power plants under §7412 precludes the EPA’s promulgation of this rule under §7411(d).

I realize the New York Times fixated on the emergency docket aspect of the memorandum, but from a jurisprudential perspective, it is significant that Roberts locked in on the MQD as the basis for relief is significant. Presumably Justice Scalia also favored this approach to the MQD, though he would not live to see the outcome.

Third, Roberts speculates about how long the petition will take to get to the Court:

The applicants also meet the third criterion for a stay, irreparable harm. The D. C. Circuit will hold oral argument on June 2 , 2016, so a cert petition is not likely to be considered by this Court until this winter. Depending on the timing of the D. C. Circuit’s decision- and taking into account the potential for en banc review it is possible that this Court will not rule on the merits until OT2017.

Litigants routinely do this sort of calculation, in light of the fact that there is such a long lead-time between briefing in the circuit court and a decision by SCOTUS. The Solicitor General will sometimes ask for a briefing schedule that permits resolution during the current term. Apparently, the Justices do this math as well. For example, I speculated that the Court sat on the petition for Students for Fair Admissions to kick it to the following term–after Dobbs. But on the flip side, the Justices can also rush a case to get it decided during a particular term.

Fourth, the Chief Justice was apparently bothered by a statement EPA Administrator Gina McCarthy made to the BBC:

Past experience makes the case for irreparable harm : On June 29, 2015, we ruled that the EPA’s Mercury and Air Toxics Standards violated the Clean Air Act. See Michigan v. EPA, 135 S. Ct. 2699. One day later, the EPA announced that it was “confident [it was] still on track to reduce” the targeted pollutants in part because “the majority of power plants are already in compliance or well on their way to compliance.” Janet McCabe, Acting Asst Admin. for Office of Air and Radiation, In Perspective: the Supreme Court’s Mercury and Air Toxics Rule Decision. In other words, the absence of a stay allowed the agency to effectively implement an important program we held to be contrary to law.

Roberts knew that the Obama Administration was trying to cement this policy so it cannot be undone. And they were cocky about it.

I also appreciate Justice Breyer’s memo. He offers a decent sense of compromise. Breyer would have suggested that if the EPA did not grant an extension, the parties can “renew” their application before the Supreme Court. Breyer also worries about the lock-in effect: “issuance of the order now may prematurely suggest a view on the merits of questions that now seem difficult.”

Breyer wrote this memo on February 6, the following day after the Chief’s memo was circulated. Breyer moved fast. Roberts moved faster. The Chief, in turn, wrote another three-page memo also dated on February 6. There was a race to persuade Justice Kennedy, and Roberts would not take it lying down. This exchange reminds us of why Roberts was the most gifted lawyer of his generation. He ran intellectual circles around opposing counsel, and I suspect he still does so with some of his colleagues. No one can match his speed and acumen. That must grate on the others.

Roberts does not think Breyer’s proposed order would do much good. “The proposed order simply recites that the applicants may renew their applications in light of changed circumstances, which is always the case.” Yes and no. By saying the applicants can renew their application, the Court is signaling that such relief would be granted. With the benefit of hindsight, the Court now routinely uses this sort of language when they are worried the lower court will not rule with enough alacrity.

Roberts also pushes back on the “lock-in” theory.

As to the second point, all stays- whenever issued- suggest a view on the merits of the case. Indeed, a view on the merits is one of the explicitly enumerated stay factors.

Of course he is right. The notion that the Court cannot give a preview of the merits has always seemed wrong to me. Justice Kavanaugh, and at least Chief Justice Roberts circa 2016, are right on this point.

Moreover, Roberts disputes that a D.C. Circuit opinion would be helpful.

There is nothing unique in that regard about issuing a stay here. True, we do not have the Court of Appeals’ view on the matter. But while a reasoned decision from a Court of Appeals is generally helpful in evaluating the merits of a stay application, in this well-lawyered set of applications the merits of the legal positions taken by both sides seem clear.

When a case is properly briefed, it really will not matter what the D.C. Circuit judges will think. Indeed, Roberts suggests that the D.C. Circuit will not be in a hurry to decide the case:

While the D. C. Circuit has expedited briefing in this case, the court has not “agreed to issue its decision on an expedited basis.”

I would point out that all four of the Chief’s clerks that term had previously clerked on the D.C. Circuit. They knew exactly what the D.C. Circuit, stacked with new Obama appointees, would do.

Roberts returns to a statement made by McCarthy. He does not trust the Obama Administration, and does not trust the D.C. Circuit. Only SCOTUS should have the final say:

I am of the mind that a rule designed to transform a substantial swath of the nation’s economy should be tested by this Court before it is presented as a fait accompli. But it seems that the EPA is sufficiently confident of this rule’s immediate implications that not even the combined efforts of Congress and the President could reverse its effects . The agency, it would seem, has made a compelling case for the applicants’ claims of irreparable harm.

On February 7, Justice Kagan writes back. She would have made the language even more forceful, hoping for a prompt decision:

“In light of that court’s agreement to consider this case on an expedited schedule, we are confident that it will [or even: we urge it to] render a decision with appropriate dispatch.”

Kagan said the Court’s ruling would be “unprecedented.”

As far as I can tell, it would be unprecedented for us to second-guess the D. C. Circuit’s decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.

Only four years removed from the Obamacare case, “unprecedented” was such a more loaded term.

Then there is Justice Sotomayor’s memo. It is dated February 16, 2016. This memo was almost certainly circulated circa February 7, 2016. It came after Justice Kagan’s February 7 memo, as it references Kagan’s memo. But Sotomayor’s memo came before Justice Alito’s February 7 memo, which references “Sonia.” I agree with Jon Adler that the most likely explanation for the February 16 label is an automatic date field. Whenever the document is opened, the current date is inserted. Someone printed this document on February 16, and the date field was updated. On February 16, most people were mourning Justice Scalia’s passing three days earlier, but at least someone thought it a good idea to retain a physical copy of this memo.

This passage made me think of Jody Kantor’s story from February about the Supreme Court NDA. Kantor wrote:

The agreements may complicate another Supreme Court tradition: former clerks cashing in on what they learn there. Law firms now pay clerks signing bonuses as high as $500,000. The court requires them to avoid working on its own cases for two years. But after that, former clerks often spend the rest of their careers monetizing the knowledge they gained from working directly with the justices and also reading still-secret older case files, some said in interviews. While they are not supposed to share specifics with clients, plenty of details slip out, the former clerks said.

Kantor’s article quotes several law clerks who might have knowledge on the practice of retaining case files after the clerkship concludes. I puzzled about this claim at the time. I wrote:

I am intrigued about how clerks share information from “still-secret older case files” with clients. I had never thought about it, but I suppose clerks may keep some documents from their clerkships on the way out. (Back when I clerked, there was no VPN, so I stored files on my personal computer so I could work from home.) Would old SCOTUS documents still be valuable to clients? I suppose.

Well, this set of documents from 2016 is very valuable.

Back to the Clean Power Plan, and Justice Alito’s memo. What about legitimacy? The thrust of the New York Times story is that the Clean Power Plan set the Court down a path of illegitimacy. But there is a different perspective. Allowing the D.C. Circuit to have the final say on the matter would weaken the Supreme Court’s legitimacy. All of the critics of the Supreme Court’s “shadow docket” are content when the D.C. Circuit or Ninth Circuit decides cases with expedited briefing and no oral argument. All lower courts have shadow dockets. Justice Alito’s memo speaks to this issue directly:

And this harm, once incurred, is by nature irreparable. Coal plants are not shuttered – nor solar plants purchased -at the drop of a hat. Of course, the Administrator knows this, which is why she effectively implied that, if the rule is allowed to continue in force, judicial review will be beside the point. That leads me to what is, in my view, the most pressing reason to grant a stay. A failure to stay this rule threatens to render our ability to provide meaningful judicial review- and by extension, our institutional legitimacy- a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. Ifwe fail to stay the rule and maintain the status quo, our resolution ofthe merits will not matter because the regulated parties will have complied. Instead of robust judicial review, our opinion will be a mere postscript.

Either the Supreme Court is supreme or it is not. Chief Judge Garland and his colleagues should not have had the final say on this matter. Chief Justice Roberts would.

The last document in the thread is from Justice Kennedy. Please remember that at this time, Justice Kennedy was the center of the universe. He decided everything. Here, Kennedy seems to think that a stay would be appropriate after the D.C. Circuit (inevitably) rules in favor of the government, so the Court may as well grant relief now.

The memoranda from the Conference have been very helpful. In my view, a stay would be granted in four to six months in any event, and fairness to the parties counsels that we should grant it now. Therefore, I agree with the recommendation of the Chief that the stay applications be granted.

The fact that the Chief and Alito persuaded AMK was huge. Justice Kagan tried her best, but did not succeed. I don’t think people realize that judges are basically attorneys trying to persuade their colleagues. Memos between judges are attempts to convince others to join. Here, Roberts prevailed.