Althouse: "Secret memos obtained by The New York Times illuminate the origins of the court’s now-routine 'shadow docket' rulings on presidential power."

April 18, 2026

"Secret memos obtained by The New York Times illuminate the origins of the court’s now-routine 'shadow docket' rulings on presidential power."

Excerpt: "Writing on formal letterhead, but addressing one another by their first names and signing off with their initials, they sound notes of irritation, air grievances and plead for more time. In addition to the usual legal materials, they cite a blog post and, twice, a television interview. They sometimes engage with one another’s arguments. But they often simply talk past each other.... When colleagues warned the chief justice that he was proposing an unprecedented move, he was dismissive. 'I recognize that the posture of this stay request is not typical,' he wrote. But he argued that the Obama plan, which aimed to regulate coal-fired plants, was 'the most expensive regulation ever imposed on the power sector,' and too big, costly and consequential for the court not to act immediately. In the Trump era, he and the other conservative justices have repeatedly empowered the president through their shadow docket rulings. By contrast, the papers reveal a court wielding those same powers to block Mr. Obama...."

35 comments:

n.n said...: Shadow docket vs Twilight fringe.; 4/18/26, 9:30 AM
Aggie said...: I like to see this kind of thing, it's a check on the court. But now they need to do the Federal courts, especially that secret so-called 'random' assignment of cases that seems to function with a peculiar regularity on outcome.; 4/18/26, 9:32 AM
WisRich said...: Another SCOTUS leak and just a few days after KBJ complained in public about, checks notes, shadow docket rulings.; 4/18/26, 9:35 AM
Dave Begley said...: “The president was under enormous pressure to address the global climate crisis. He had campaigned on that promise, then for eight years as the planet heated, he failed to get major environmental legislation through Congress. With his term about to end, this was his last chance to act.

The chief justice was eager to assert his institution’s authority and to rein in Mr. Obama’s Environmental Protection Agency, which he believed had sidestepped a recent ruling.”

People are now complaining about electricity prices. If SCOTUS would not have acted, they’d be even higher in 2026.

And there is no climate crisis.; 4/18/26, 9:36 AM
Dave Begley said...: “The challenge to the regulation went straight to the D.C. Circuit, which set it down for a prompt argument, but refused to halt the plan in the meantime. At that point the challengers, led by West Virginia, tried to take a shortcut. Instead of waiting for the appeals court to hear the case, they went straight to the Supreme Court, asking the justices to pause the plan for the duration of the litigation, including an eventual possible return trip to the Supreme Court.”

The Left has routinely used the delay and length of time of legal process to get its way. SCOTUS was correct to act.

Electric utilities have long lead times and acting quickly was important. The damage would have been done if it took 3-4 years for SCOTUS to act.; 4/18/26, 9:44 AM
john mosby said...: Wood make a great epistolary book or play, on the lines of Love Letters.

“Dear Clarence: you suck. Regards. SS”

“Dear Sonia, you suck donkey. Respectfully, CT”

“Dear Clarence: you suck woolly mammoth. Have a nice weekend, SS”

“Dear Sonia, you suck blue whale. Love. CT”

&c. CC, JSM; 4/18/26, 9:46 AM
Dave Begley said...: “Over just five days, the justices had decided the issue. Even as they debated the Obama plan’s possible burden on the power industry, in the entire chain of correspondence obtained by The Times, not a single justice, conservative or liberal, mentioned the dangers of a warming planet as one of the possible harms the court should consider.”

LOL. Warming planet? LOL.

It would have cost $480b to implement and would not have done a thing.

NYT is so, so biased.; 4/18/26, 9:51 AM
Dave Begley said...: Scalia’s last vote was one of his most important ones!

“The following Saturday morning, Justice Scalia failed to appear for breakfast at a weekend hunting retreat in Texas. Hours later he was found dead. As far as the public record reveals, the vote on the Clean Power Plan was his last. Had the court not acted with exceptional speed, the case would have ended in a deadlock and the Obama plan would have stayed in place.”; 4/18/26, 9:54 AM
Wince said...: When colleagues warned the chief justice that he was proposing an unprecedented move, he was dismissive. 'I recognize that the posture of this stay request is not typical,' he wrote.

That's being "dismissive"?

But he argued that the Obama plan, which aimed to regulate coal-fired plants, was 'the most expensive regulation ever imposed on the power sector,' and too big, costly and consequential for the court not to act immediately.

The Constitution isn't a suicide pact? Good to know.; 4/18/26, 9:55 AM
n.n said...: Less than one degree of intermittent, variable global average warming from the reference threshold defined in the 90s. Your experience in urban heat islands may vary.; 4/18/26, 10:09 AM
n.n said...: Obama selling seashells and shit shows by the rising waters off the seashore at Martha's Vineyard to pay for a second Iraq war, a Green blight and 40 trillion dollars in unaffordable medical insurance under an albinophobic Rainbow.; 4/18/26, 10:25 AM
Yancey Ward said...: The D.C. Circuit should have issued the stay itself even if they knew how they were going to rule on it (and they did and so did everyone else with an IQ above body temperature). The court denied the stay precisely because they knew their eventual ruling might get overturned by SCOTUS and so they wanted to get Obama's plan in motion before that happened.; 4/18/26, 10:35 AM
Zavier Onasses said...: What a stack of pferd merde. OK, NYT got hold of confidential internal SCOTUS communications. NYT interprets these documents as showing a change in how SCOTUS "had generally handled major cases" for the last 85% of its history. The case at hand, "major presidential" power grab and usurpation of Legislative authority.

As NYT says, "The 16 pages of memos...[show] how the justices talk to one another outside public view." So, just another day at SCOTUS; no big story here, just NYT again spilling ink over purloined papers.

Thx for the link, Althouse, but it is just NYT lurid prose and political prancing in underwear and heels. No "spinning in new directions." Had to bail at a few paragraphs.

And HOW did NYT come by this confidential material? What about condemnation of the Leaker?; 4/18/26, 10:40 AM
narciso said...: Much like releasing the dobbs opinion, it poisons the well; 4/18/26, 11:03 AM
bagoh20 said...: How do you get "secret memos"? Do you pay someone? How much? Did that person steal them. Seems like a lot of illegal stuff goes on in the SC.; 4/18/26, 11:25 AM
NKP said...: The Judiciary is the most corrupt branch of government. It's the one that retained trappings of royalty. If the "No Kings" crowd had a brain they'd be acting-up on courthouse steps all over the country.

Do they really need the "Robes"? Why not bring back the wigs? All rise? "Your HONOR? What other government official can fuck you up, fine you and stick your ass in jail for annoying him/her (Contempt)?

God forbid the judge actually judge the crime or accused. In a jury trial, the judge regulates deportment of attorneys and makes sure no one in the court colors outside the lines.

At he appellate levels; the issues be damned - "judges/justices" are merely grading the legal scholarship of those arguing the case.

What "happened" matters little compared to whoever argued whatever based on the relevance of something in the constitution, subject to often novel interpretation.

Anyone foolish and/or stubborn enoungh to represent themselves at appellate level is going to spend a lot of time in the county law library (sorry, but it's go Full Monty or Go Home). You need a sense of humor but Case Law can be a hoot.

I know - I oversimplify. But wouldn't it be refreshing if the man seen stabbing the woman to death on video was convicted of murder and sentenced for the taking of her life, regardless of whether he was having a bad hair day, or did it lefty in spite of being a natrural right-hander?

The Judiciary checks and balances the Legislature and Executive, routinely. Who checks and balances the Judiciary?
In reality; it is entirely self-policing.

AAaaarrgh!!!!!!!!; 4/18/26, 11:28 AM
n.n said...: Exactly. Who, what, where, when, why, and how? Procured or pilfered, is the question.; 4/18/26, 11:47 AM
n.n said...: JournoListic Integrity (JI).; 4/18/26, 11:47 AM
Richard Dolan said...: It's plausible that the NYT obtained the memos from the papers of one of the justices who participated in the 2016 decision. As it happens, Scalia and Ginsburg are dead; and Kennedy and Breyer retired. The papers of a Supreme Court justice are deemed the judge's personal property, to keep or dispose of as the judge deems fit. Scalia's papers were donated to Harvard LS, to become publicly available after 2020, with the proviso that the papers related to some cases would be withheld for a longer period. Don't know into which category these stay papers would have fallen. I don't believe that any final decision was made by Breyer, Kennedy and Ginsburg about what to do with their papers. In the meantime, they remain under the control of the justice (or in her case, Ginsburg's estate). So, lots of potential sources beyond the control of SCOTUS that could have provided them to the NYT.

As for the substance of the memos, there is nothing all that newsworthy about these memos. It's typical in the federal system for appellate judges (both SCOTUS and Circuit) to communicate with other chambers in writing, with whatever level of formality is the tradition for that court. Once an application for a stay is presented, however, the court has to decide it one way or the other, as Kavanaugh noted during the current term. Whether to write a short order or a more expansive mini-opinion has also been the subject of opinions by Barrett and Kagan (among others) this term, with strong arguments both ways.

The NYT wants to conjure up a politicized battle between CJ Roberts and Obama but the explanation seems much simpler. As the article notes, SCOTUS had already started using the reasoning that later crystallized into the Major Questions Doctrine to strike down EPA regulations that tried to seize control of major sectors of the economy based on very general provisions of decades-old statutes that addressed very different (and limited) issues. Add to that the in-your-face attitude of Team Obama (President Phone-and -Pen, plus EPA administrators who were a bit too public about running out the clock), and a stay order like this one was inevitable at some point. This EPA power grab came along at the right time to fit the bill.

So, really just the NYT spinning its preferred narrative about today's SCOTUS, which the NYT will change when the membership of the court eventually switches back to majority Dem.; 4/18/26, 12:26 PM
Josephbleau said...: Having a judicial system and judges in a democracy is fraught with peril. The goal is to make the rich and elite just as accountable s the ordinary surf, but as a consequence, enormous power is placed in judicial hands to destroy. And the non explicit right to declare laws unconstitutional was created by Marbury v. Madison as a “logical necessity” by Marshall. Jefferson, and Lincoln argued that other branches of government could also determine constitutionality but the judges won and now they are firmly in power. This is a major risk vector in government. We get to hold elites accountable and pay a price for it.

This is where the tension lies in us government, and why we are more and more ruled by judges. Perhaps an amendment that Congress could overrule the court by supermajority, say 3/4 ths, would be good, but somewhat risky too.

So openness is mostly good about judges, but what these leaks will do is to make sure the supreme court puts nothing in writing.; 4/18/26, 12:36 PM
Josephbleau said...: And what is really bd is giving power to unelected commercial interest groups like the bar associations really sucks the root bag. These trade association should have no more power than the common man period.; 4/18/26, 12:39 PM
Josephbleau said...: Tense corrections etc.; 4/18/26, 12:40 PM
AZ Bob said...: Mollie Hemingway: "Scoop from my new book ALITO is trending! Liberal justices intentionally slow-walked Dobbs release even as their colleagues faced horrific death threats on them and their children."; 4/18/26, 1:03 PM
Lem Vibe Bandit said...: I thought the Supremes were allowed to talk amongst each other.; 4/18/26, 1:29 PM
Goldenpause said...: Gee, I wonder who the leaker was. Not really.; 4/18/26, 2:55 PM
Bob B said...: It’s the NYT, so there is no reason to believe anything in the article is true, or if true, not taken in context.; 4/18/26, 3:13 PM
RCOCEAN II said...: Of course, the article says something the NYT's isnt trying to say. Namely, once again the 4 leftists on the Court all voted their politics - as a bloc. The fig leaf they used was "precedent" but of course that goes out the window when precedent works against them.

It also shows what a lot of people forget. Roberts and Kennedy were Bush/moderate Republicans. They may be/been socially liberal or favor racial quotas/open borders, but when it came/comes to Big Business they were firmly on the Republican side.; 4/18/26, 3:25 PM
RCOCEAN II said...: BTW, did they ever figure out who leaked the draft decision to overturn Roe v. Wade? I'm sure everyone in the Press and the SCOTUS knows who did it. But did they ever tell the American People?; 4/18/26, 3:26 PM
Joe Bar said...: "This is an odd way of saying, “How the Obama administration gamed the appeals process to enact costly and illegal regulations on the energy sector.” "

https://x.com/conncarroll/status/2045505850991685657; 4/18/26, 4:12 PM
mccullough said...: The left whines about the emergency docket. Calls it the shadow docket.

Obama tried to undermine Democracy with his pen.

The Supreme Court shoved it up his ass with no lube. That’s what Democracy looks like. As Obama had said: “I am not a King.”

No Kings, bitches; 4/18/26, 4:31 PM
Craig Mc said...: It's the NYT, so I guess they couldn't say Obama exceeded his authority, but Trump hasn't.; 4/18/26, 5:53 PM
Iman said...: BIG Zer0 needed much more blocking. The damage from what he DID get away with will haunt this country for decades.; 4/18/26, 7:50 PM
Iman said...: That’s how all of those pricks roll, AZ Bob!; 4/18/26, 7:52 PM
Edmund said...: The Supreme Court used the "shadow docket" to pull the tariffs case up to them and decided against the Trump administration. Did that make the article? Nope.; 4/18/26, 9:17 PM
Greg The Class Traitor said...: In the Trump era, he and the other conservative justices have repeatedly empowered the president through their shadow docket rulings. By contrast, the papers reveal a court wielding those same powers to block Mr. Obama...."

Gee, maybe that's because in the Trump era, the District court judges are abusing their power in order to block Trump's entirely legitimate activities, whereas in the Obama Era SCOTUS was acting to block Obama from violating the law and abusing his powers.

But for the NYT, there's no right or wrong, there's not Constitutional and unconstitutional, there's only "what we want" and "what we oppose"; 4/18/26, 10:07 PM