Chief Justice John Roberts’ institutionalist reputation has long been overblown and undeserved. New reporting reminds us that Roberts has been an activist all along.
Over the weekend, The New York Times revealed the origins of the modern shadow docket, publishing internal memos that were circulated among the justices before the Roberts-led majority halted then-President Barack Obama’s Clean Power Plan in 2016.
At the time, all the public saw was an unexplained order, the likes of which is more common today, splitting the justices along the party lines of the presidents who appointed them. Of course, that 2016 order blocked a key Democratic initiative, while much of the court’s shadow docket work these days has empowered the Republican president.
The Times recounted that Roberts had “cultivated a reputation for care and caution” but that the internal correspondence showed “a different side” of him: “At a critical moment for the country and the court, the papers show, he acted as a bulldozer in pushing to stop Mr. Obama’s plan to address the global climate crisis.”
The Times further reported, “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.”
Justice Elena Kagan reportedly warned in her private memo to colleagues that Roberts was advocating for an “unprecedented” intervention in the complex litigation. She would be among the four Democratic appointees to note their dissent in the published order that accomplished Roberts’ goal.
Thus, while the Times observed that the chief justice “was eager to assert his institution’s authority,” he seemed to care at least as much about the interests of “the power sector,” as he put it in his memo.
Underscoring how differently some members of the court view its role, Justice Samuel Alito reportedly warned in his memo that the court’s “institutional legitimacy” was at risk if the court failed to block Obama’s policy. (MS NOW has not independently confirmed the authenticity of the memos, which The Times said it confirmed “with several people familiar with the deliberations and shared them with a spokeswoman for the court.”)
To be sure, Roberts has taken steps over the years to cultivate the careful and cautious image to which the report referred. Through his leadership role as the head of the federal judiciary, he has denounced some attacks on judges, and some of the votes he has cast have been more moderate than those of his Republican-appointed colleagues like Alito.
But the relative moderateness of some of his actions only highlight the court’s further rightward shift over the years. Roberts has steered some of that shift, as the new reporting highlights. Yet today’s six-justice GOP-appointed supermajority doesn’t even need his vote to win a case if the other five are on board. In this season of retirement speculation ahead of the midterms, that’s another takeaway from the 2016 incident, because it happened when the court still had a true swing vote in Anthony Kennedy, who has since been replaced by Trump appointee Brett Kavanaugh. In 2016, Kennedy cast the tie-breaking vote to side with Roberts and the other GOP appointees.
The latest bombshell out of the court comes as the justices have been airing their shadow docket disagreements in both their written opinions and public remarks.
Just this past week, Justice Ketanji Brown Jackson devoted a lecture at Yale Law School to the topic, titled “Equity and Exigency: A First-Principles Solution for the Supreme Court’s Emergency Docket.” The Biden-appointed justice called for a return to judicial restraint amid the majority’s serial interventions on behalf of the current administration’s lower court losses. Jackson said she’s “very troubled by the institutional costs” that the high court’s actions impose on its relationships with both the lower courts and the American people.
Her critique looks even stronger against the backdrop of the new reporting, which reveals Roberts’ concern in 2016 that states and private industry would suffer irreparable harm without immediate high court relief. That stands in contrast to the majority’s actions a decade later, when the court treats the Trump administration’s desire to implement its preferred policies with great deference on the shadow docket.
Therefore, Jackson’s critique, coupled with the new reporting, suggests the court’s newest justice is more deserving of the institutionalist label — at least when it comes to the shadow docket.
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