Jack Goldsmith on the NYT and the Leaked Supreme Court “Shadow Papers”

Over at Executive Functions, Jack Goldsmith offers a sharp critique of the way that the New York Times presented and spun the content of the leaked Supreme Court memos concerning whether to stay the Obama Administration’s Clean Power Plan.

From the beginning of his post:

The CPP order was unusual, but not because the Court temporarily decided a very important issue via an interim order with no explanation. That had happened quite a lot, even outside the death penalty and election contexts. See for example these two interim orders from 2014 on abortion and same-sex marriage.

The CPP order was novel at the time, I believe, because it temporarily shut down a presidential program even before the court below had a chance to rule on the issue. (The Court did something similar last year in enjoining President Trump’s Alien Enemies Act deportations.) Viewed from the perspective of 2026, this order fairly marks the beginning of the Court’s modern active engagement with presidential initiatives via interim orders, as Kantor and Liptak suggest.

The CPP memoranda implicate lots of meaty legal and institutional issues which I will analyze in due course. But for now I simply want to flag what I view as unfortunately tendentious reporting about the memoranda, especially but not exclusively about the Chief Justice.

In the remainder of the post, Goldsmith flags some of the many ways in which the NYT‘s reports spin or frame the memos in a manner that seems to align as much, if not more, with the reporters’ priors than with the evidence at hand. Several of his points aligned made by Will Baude. Fortunately, the stories included copies of the memos themselves and much of the other relevant material (such as the briefs submitted to the Court) is a matter of public record so people can judge for themselves.