Do the Supreme Court “Shadow Papers” Reveal Supreme Court Hypocrisy?

Do the internal Supreme Court memos concerning the stay of the Clean Power Plan reveal judicial hypocrisy or a failure of the justices to apply the proper standard of review? Many commentators seem to think so. Many also seem to think the memos (and those by the Chief Justice in particular) contain errors or omissions that were not commented upon by the other justices.

At Divided Argument, William Baude and Richard Re respond to the claims that the Court failed to adequately or consistently account for irreparable injury to the government and did not apply the appropriate standard of review. On the former point thy write:

The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case.

This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party. Instead, the challengers to Clean Power Plan were the moving party: they were the ones seeking a stay.

On the question of the standard of review, Baude and Re write:

Another criticism is that the Chief Justice’s memo clearly applied the wrong standard of review. Here, too, the critics are at best overstating their case. The factors applied by the Chief Justice were sensible ones drawn from prior cases and the briefing before the Court.

And, notably, for all of the internal pushback from the dissenting justices, they did not push back on the standard of review. Perhaps this is because the details of the standard of review do not matter so much. In a somewhat novel case, any relevant substantive points can be channeled into the plausible alternative standards of review as well.

As they note, there was some ambiguity about the proper standard to apply, and whether the authority for the stay should be understood to come from the All Writs Act, APA Section 705, or somewhere else. In any event, the Court considered what we would expect to it consider.

I would add that it’s a mistake to read these internal memoranda as if they were public judicial opinions, as opposed to memoranda distributed to a specialized audience. My experience as a judicial clerk may not be representative, but I recall memoranda by judges to their colleagues that focused on the issues and questions of immediate concern that did not walk through or spell out all of the relevant considerations, let alone seek to provide guidance to lower courts.

Baude and Re continue:

the Court applied its normal equitable inquiry, citing both the general standard for a stay pending appeal and the standard for stays of administrative action set out in Nken v. Holder. These two standards are really applications of the same underlying principles. Both standards focus on a likelihood of success (which in this context includes an assessment of certworthiness) and irreparable injury to the moving party. The Chief Justice squarely addressed those critical points. When the government is a party, these standards also allow consideration of the balance of the equities in close cases. And the Chief Justice not only noted that point, but also had a clear view as to how it applied, particularly given the threat that he perceived to the Court’s authority. . .

Perhaps the Court was wrong to rely so much on the likelihood of success, especially at such an early stage of the proceedings, and to be so concerned about the executive branch’s efforts to circumvent the judiciary. At the same time, those considerations are hardly unique to the Clean Power Plan case and they have reemerged when the justices faced other cases of fast-moving executive branch overreach. Take AARP v. Trump or the Illinois National Guard case.

Or perhaps critics simply disagree with the ultimate judgments the majority reached. That is fine, but a very different point from whether the memos reveal basic doctrinal errors or hypocrisies, which we doubt.

My prior posts on the “shadow papers” and the “shadow docket” more broadly can be found here.