Reading the Clean Power Plan “Shadow Papers” in Context

Last weekend’s release of internal Supreme Court memos continues to prompt commentary–too little of which puts the substance of the memos in appropriate context. I have tried to address some of this with my prior posts on the papers and the leak.

As someone who focuses on administrative and environmental law, I think it is important to recall what was occurring when the Court received these applications. Having failed to get climate change legislation enacted, the Obama Administration was working aggressively to retrofit the Clean Air Act to greenhouse gas emission control. Its most significant prior effort in this regard–the so-called “Timing and Tailoring Rules”–were breathtakingly audacious. The EPA not only asserted the authority to rewrite the statute’s numerical emission thresholds, it also sought to do so in a way that would be immune from judicial review. This worked in the D.C. Circuit, but not in the Supreme Court, which rejected most of the EPA’s handiwork in UARG v. EPA.

The following year the Court rejected the EPA’s mercury emission rules in Michigan v. EPA, only to have EPA officials crow that the Court’s decision was irrelevant because the mere threat of regulation had induced compliance while the challenge worked its way through the courts. As the Chief Justice notes in one of the released memos, EPA officials were bragging about having imposed billions of dollars in compliance costs through the threat of imposing an unlawful rule. Further, as the Chief noted, EPA officials were suggesting they were prepared to do this again with the Clean Power Plan rule. (And, contrary to what some commentators claim, these points were all made quite explicit in the briefing to the Court (which is available here), and thus did not require the consideration of material outside the record.) So while the stay requests to the Supreme Court were unprecedented, so was the surrounding context–a point I noted at the time.

It is also worth noting that the Administrative Procedure Act and Clean Air Act both contemplate the possibility of stays of newly finalized rules. Under the APA, most major rules cannot go into force for at least 60 days after publication in the Federal Register and Section 705 allows courts to further postpone the effective date of regulations “to preserve status or rights pending conclusion of the review proceedings.” The various petitioners here, representing 27 states and a raft of business groups, trade associations, and unions, filed within two weeks of the rule’s publication, and thus a stay was sought to preserve the status quo and prevent the need to make precautionary investments in compliance. This posture, involving a final rule that, under the APA, can be challenged before it takes effect, is meaningfully different from many of the other challenges to executive branch action we now see in the courts.

Over at SCOTUSBlog, Taraleigh Davis provides “some additional context about what the memos show and what they don’t” based upon her work looking at how the Court has handled requests for emergency relief in the past. She writes:

The New York Times piece frames this as the moment the court took a wrong turn. In their telling, the justices “bypassed time-tested procedures and opted for a new way of doing business.” The Times treats nearly everything about the 2016 decision as a break from the court’s prior operation: the speed, the secrecy, the lack of a written opinion, the partisan 5-4 split, and the court acting in advance of any appellate court ruling.

The Times is wrong about most of this. . . .

Although Kantor and Liptak are thus correct that the nature of what the court was being asked to do was different, they further describe the memos as “nothing like the court’s usual painstaking work.” In support of this claim, they refer to the order being justified in the memos by a blog post and a television interview; point to the justices’ using their first names to refer to one another; and describe expressions of irritation between the justices.

None of those things were novel. Rather, the justices responded deliberately, over five days, through exactly the kind of collegial back and forth that has characterized the emergency docket deliberations for decades.

To support her claim, Davis points to examples of “shadow docket” memos she has reviewed from Justice John Paul Stevens’ papers, and shows how so much of what the Times thought was unusual was actually par for the course. She writes:

Perhaps most significantly, the legal standards invoked in 2016 were no different than in years past. On the emergency docket, the circuit justice always writes the initial memo, lays out the facts, and applies the four-factor framework on granting a stay: whether there is a reasonable probability of cert, a fair prospect of reversal, the prospect an applicant will suffer irreparable harm, and a balancing of the equities. Roberts did exactly that.

Reading Roberts’ memos without that context might make the EPA case seem like an outlier. But, in that regard, it most certainly was not.

As Davis notes, the reaction to the Court’s action, and the release of these memos, is likely a consequence of the substance of what the Court did, and not these other factors. She concludes:

The New York Times casts the 2016 stay as the origin point of the modern emergency docket, the moment the justices “bypassed time-tested procedures and opted for a new way of doing business.” That framing is too simplistic. The procedures were not bypassed: the memos, the back-and-forth, the circuit justice recommendations, the confident predictions, the engagement with colleagues by name – this had long predated February 2016.

What was genuinely new was the question the court was asked to answer: whether to halt a sweeping federal regulatory program before any appellate court had reviewed it. And, admittedly, the court’s answer mattered. The justices could have denied the application and waited for the D.C. Circuit to rule. By doing otherwise, they established that this kind of relief was available, and litigants have been asking for it ever since. That is a significant development in the emergency docket’s history. But the court did not stumble into it. It deliberated carefully, in exactly the way it always had.

Over at Divided Argument, Richard Re joins those who  think “the breathless reporting does not line up with the content of the memos.” From his post:

Different NYT articles maintain that the leaked documents reflected “nothing like the court’s usual painstaking work” and that they contain a “blizzard of memos” spanning five days and authored by six justices. These descriptions are in tension with one another, and they also fail to acknowledge that important judicial decisions are frequently made under a wide range of procedures and circumstances.

He adds:

A serious effort at criticizing the Court’s decision would consider unexplained interim decisions that cut in favor of different policy preferences. Did injunctions against the second Trump administration always exhibit a superior deliberative process? Stays in capital cases? Orders to block deportations? Consider for example that the justices acted in an even more rapid fashion last year in A.A.R.P v. Trump.

To push that comparison a bit further, critical commentators ought to grapple with perhaps the central point that motivated the Court’s action. As the memos relate, Obama administration officials at least arguably stated that, in both this case and a prior case, the executive branch was moving too fast for the justices to stop them. Today, in the era of Trump 2.0, how many people would seriously deny that that consideration is powerful?