The New York Times reports that leaked 2016 memos mark the “birth” of the “shadow docket,” pointing to the Court’s stay of President Obama’s Clean Power Plan. But the same Court had used the interim docket the year before to halt Texas’s anti-abortion laws — a liberal win the piece does not mention, and one that complicates the framing of the shadow docket as a tool reserved for conservative ends.
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Agenda
- (00:00) Intro
- (XX:XX) The birth of the shadow docket
- (21:32) Who leaked Dobbs?
- (XX:XX) Justice Sotomayor apologizes to Justice Kavanaugh
- (XX:XX) Justice Kagan’s screaming tantrum
- (XX:XX) Justice Thomas’s talk on the Declaration of Independence
Episode Takeaways
- The “birth of the shadow docket” framing doesn’t survive scrutiny: The Times presents the 2016 Clean Power Plan stay as the origin of the modern emergency docket, but the same Roberts Court had already used the interim docket in 2013–2015 to pause Texas’s abortion restrictions and to block a district court’s same-sex marriage ruling from taking effect pre-Obergefell. The real driver is negative polarization and the rise of rule-by-executive-action — not a Chief Justice with a grudge against President Obama. And Chief Justice Roberts’s memo explicitly cites EPA Administrator Gina McCarthy’s BBC interview crowing that the Clean Power Plan would be “baked in” regardless of what Congress or a future president did — which courts tend to read as a reason to grant injunctive relief sooner, not later.
- The leak narrows the Dobbs-leak suspect pool: Every memo in the NYT story is on chambers letterhead and clerk-initialed — except the one from Justice Sotomayor’s chambers, which appears to be an unsent draft. That strongly suggests the leaker had access to materials only her own chambers would possess, narrowing the universe to current and former clerks. Eyebrow raised — the Dwayne “The Rock” Johnson single-eyebrow variety.
- Justice Sotomayor models how to handle a mistake: After her remarks from the bench suggesting that Justice Kavanaugh — whose parents were professionals — might not know anyone who had ever worked an hourly job drew criticism, she privately apologized to him before issuing a public statement calling the remarks hurtful. Ten out of ten, no notes — and a useful template for how the other branches might handle their own missteps.
- Skepticism warranted on the Kagan “screaming tantrum” story: An excerpt from Mollie Hemingway’s forthcoming book on Justice Alito says that in the month between the Dobbs leak and the final decision, Alito asked Justice Breyer — the senior dissenter — to speed up the principal dissent so the Court could release the opinion sooner, citing security threats against the conservative justices. Breyer was reportedly receptive; Justice Kagan is said to have screamed at him to refuse, shaking the walls. Possible she raised her voice; implausible that an anonymously sourced clerk next door actually knew the specific reason. The story’s self-evident hyperbole invites a second raised eyebrow.
- Thomas’s Declaration speech is about Wilson, not Bernie: Justice Thomas’s University of Texas address commemorating the 250th anniversary of the Declaration targeted the Progressive Era project — Woodrow Wilson, Teddy Roosevelt, Oliver Wendell Holmes — of displacing congressional lawmaking with rule by experts. Headlines reading it as an attack on modern left-leaning policy preferences miss the substantive point about Wilsonian political philosophy vs. the Declaration’s founding principles.
We are the McGirt podcast — Governor Stitt on the fallout: Six years after McGirt v. Oklahoma, Governor Stitt describes Tulsa officers having to ask drivers about their race on traffic stops, tribal courts with no public dockets or transparency, and domestic-violence cases going unprosecuted. He recounted a midnight murder call where federal prosecutors told the sheriff they’d show up Monday morning because the suspect was Native American. His view: Congress could fix this but won’t — tribal governments are Oklahoma’s largest political donors, and senators elsewhere have no incentive to pick the fight. And there’s no obvious compromise on offer; the Governor compared the politics to Russia and Ukraine.
Show Notes
- Employment Division v. Smith
- Sherbert v. Verner
- Carson v. Mackin
- Roe v. Wade
- Dobbs v. Jackson Women's Health
- Plessy v. Ferguson
- Brown v. Board
- Free Speech Coalition v. Ashcroft
Good of the Order
[ADD ANNOUNCEMENTS / GOOD OF THE ORDER ITEMS HERE — next AO Live at the University of Denver; tease the Princess Bride “Pit of Despair” principle]
Show Notes
- New York Times: “The Birth of the Supreme Court’s Shadow Docket” [ADD LINK]
- Governor Kevin Stitt’s Wall Street Journal op-ed on McGirt [ADD LINK]
- McGirt v. Oklahoma (2020) opinion [ADD LINK]
- Stroble v. Oklahoma cert denial [ADD LINK]
- Justice Sotomayor’s apology to Justice Kavanaugh [ADD LINK]
- Mollie Hemingway book excerpt on Alito and the Dobbs leak (Fox News) [ADD LINK]
- Justice Thomas’s University of Texas speech on the Declaration (WSJ excerpt) [ADD LINK]
- Sarah’s book on the Supreme Court [ADD LINK]
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