I've been giving more thought to the Clean Power Plan leak. I keep coming back to the fact that this set of documents is a decade old. Obviously, one or more people have been sitting on these seven memos for a decade. These records could have been given to the New York Times at any time over the past five years or so--around when the "shadow docket" panic began. Why now?
Moreover, whoever decided to keep these seven memoranda a decade ago likely did not anticipate how singularly important the Clean Power plan ruling would become. Hindsight is always 20/20. The more likely scenario is this person retained many documents. I can only imagine that more documents may be coming from this source.
I do not think that the person who retained these documents is an outlier. It is far more likely that many people at the Court have retained confidential documents over the years. These records may have long collected dust in file cabinets and banker boxes, but are now likely being dusted off.
The Justices impose strict rules on how their papers may be released after their deaths. But do the Justices even know whether copies exist outside the building? I think the answer has to be no. In the wake of Dobbs, Justice Thomas said that the Justices could no longer trust each other and their staff. This decade-long leak has further eroded whatever trust remained in the building.
Speaking of Dobbs, remember that the version Politico reported on had the indicia of a printed draft with staples and other markings. If people purloined draft memoranda in 2016, then it stands to reason that similar actions were taken for draft opinions in 2022. There may be an unspoken tradition.
The usual reason why clerks and others maintain confidentiality is that they are afraid their reputation may take a hit if a leak is traced back to them. As Justice Scalia would say, any clerk who leaks information would face the end of their career. But it isn't clear that deterrent exists anymore. Whoever retained these documents a decade ago is probably far enough removed from the Court to no longer care about possible sanction from the Chief Justice's feckless investigation. Moreover, all statutes of limitations have run. Plus, there is no chance a D.C. federal grand jury would actually indict here. The defendant would likely be given a medal. Remember, the movement is being led by people intent on showing that the Supreme Court is a failed and illegitimate institution that must be reformed from the outside. If they are outed, it may boost their career. Back in 1972, Deepthroat went to Woodward and Bernstein to protect his identity. But what if Mark Felt simply wrote his own book about Watergate?
We are not out of the woods yet. We are just getting started.
That's the opening line from yesterday's Oregon v. Kennedy, by Judge Mustafa Kasubhai (D. Or.) (the only federal judge I've seen who includes pronouns, in this instance "he/him," in his signature block; perhaps there are a few others, but very few). I'm not knowledgeable enough on the substance to speak to the administrative law issues here, I'm no fan of Kennedy, and it would certainly not surprise me that the Administration's actions here were inconsistent with federal law. But my tentative sense is that, whatever one might personally think about Kennedy's seriousness, judges' decisions are more credible when those decisions focus solely on the law, rather than deciding which of our leaders are serious.
In any event, some excerpts from the long opinion:
Unserious leaders are unsafe. There is nothing more serious than our leaders' dedication to the rule of law so that we might maintain the integrity of our constitutional democracy. This case highlights a leader's unserious regard for the rule of law. This case demonstrates how disregard for the rule of law does not merely result in an abstract infraction. Rather, and tragically, this case is one of a long list of examples of how a leader's wanton disregard for the rule of law causes very real harm to very real people.
This Court can and does judge the lawfulness of the process (or lack thereof) by which any policy choice might be made. Here, the Secretary of Health and Human Services, Robert F. Kennedy, Jr., unlawfully issued a declaration threatening to cut federal funding to medical providers who provided gender-affirming care to minors. If such a declaration could have been enacted lawfully, there might have been ample time and opportunity for medical providers, families, and children—all people and institutions of our great nation—to seek out other alternatives and options. Secretary Kennedy's utter failure to promulgate rules in accordance with statutory authority, but instead threaten to cease federal funding to medical providers almost immediately after the declaration, caused chaos and terror for all those people and institutions of our great nation. Secretary Kennedy's unlawful declaration harmed children. This case illustrates that when a leader acts without authority and in the absence of the rule of law, he acts with cruelty.
Plaintiffs filed this lawsuit alleging that Defendants violated the Administrative Procedure Act ("APA"), by issuing a declaration entitled "Safety, Effectiveness, and Professional Standards of Care for Sex-Rejecting Procedures on Children and Adolescents." Before the Court is Plaintiffs' Motion for Summary Judgment, and Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, For the reasons below, Plaintiffs' motion is granted, and Defendants' motion is denied….
In late April and May, I will be doing multiple speaking engagements in Spain and Italy. Several of these events are open to the public, to varying degrees. I look forward to potentially meeting readers in those two countries!
Below is the list of the events, along with relevant links (listed times are in the local time zone). I will update with additional relevant information, if it becomes available.
April 24, 7:40-8:30 PM, LibertyCon Europe 2026 (sponsored by European Students for Liberty), Madrid, Spain: "The Nationalist Threat to Economic Liberty." Panel on "Economic Freedom: Challenges and Perspectives." Registration and other information about this conference here. I think this event is only open to registered participants in the conference, and invited speakers.
April 26, 4:30-5:15 PM, LibertyCon Europe 2026 (sponsored by European Students for Liberty), Madrid, Spain: "Free Trade: Liberation from Trump's 'Liberation Day' Tariffs." Registration and other information about this conference here. I think this event is only open to registered participants in the conference, and invited speakers. But registration is easy.
May 12, 11::00 AM-1 PM, Unitelma Sapienza University of Rome, Rome, Italy: "Threats to Liberal Democracy in the United States - And How to Counter Them." This is primarily an online event. You can watch it here.
May 14-15, Common Core of European Administrative Law (COCEAL), Workshop on Welfare Rights, Bocconi University, Milan, Italy: "Constitutional Welfare Rights in the United States." This is an ongoing workshop continuing over two days. I am afraid it is open only to invited participants.
May 18, 6-7 PM, Bruno Leoni Institute, Residenza Vignale, Milan, Italy: "The Legal Battle Against Trump's Tariffs." This event, sponsored by Italy's leading libertarian/classical liberal think tank, is open to the public.
Long-time readers may remember a series of posts I wrote circa 2020 about the conflicts between Chief Justice Roberts and Justice Kagan. One of my recurring themes was that the Chief Justice thought he was in control of the Court, but he clearly wasn't. Moreover, I suggested that the genesis of many of the leaks was due to frustration with the Court, and the Chief Justice's leadership in particular. Finally, I said that if the Chief could not right the ship, he should step down. To this day, people misunderstand my point. My call for resignation had nothing to do with any particular ruling or decision by Roberts that I disagreed with. If that was the litmus test, I would routinely call on the Court's progressives to call it quits. Rather, why would I tell Roberts--someone I agreed with about 90% of the time--to step down? The answer was a failure of leadership that was visible through publicly available information.
The leak in the Clean Power Plan case confirms much of how I've suspected the Chief manages his leadership of the Court.
Remember how John Roberts projects himself publicly. Roberts is an "institutionalist." He came to the Court wanting to reduce the number of 5-4 decisions. He didn't want the Court to seem partisan with teams on the right and teams on the left. He favored slow, incremental decisions.
Yet in the Clean Power Plan case, he tossed all of that caution to the wind. He led the charge to grant an unprecedented stay by a party line 5-4 vote. Justice Breyer offered a potential middle ground, which Roberts forcefully rejected as meaningless. Further, Justice Kagan's memorandum stated quite clearly how Roberts was venturing into novel territory. Roberts didn't care. And this wasn't a case where Justice Thomas or Scalia was pushing the Court to the right, and Roberts felt compelled to join so he could moderate. The Chief Justice was behind the wheel. Justice Kennedy said he was persuaded by the Chief in particular. Had Roberts done nothing, the stay would have been denied.
I don't think anyone could have anticipated what would happen with the emergency docket, but there was every good reason to recognize this ruling was novel. There is a reason I remember the exact moment in time when I read about the stay. For me, it was akin to asking "Where were you when President Kennedy was assassinated" or "Where were you when Reagan was shot." (I was not alive for either moment.) I remember the stay order with absolute clarity, because I immediately recognized how big a shift this was. Savvy judges on the D.C. Circuit, including then-Judge Kavanaugh, likely realized the impact as well. I would love to have asked Judge Silberman about this ruling. The Supreme Court told the nuclear D.C. Circuit "We don't trust you." If you want to mark the beginning of the rupture between the Supreme Court and the lower courts, this was likely it.
So then what do we make of the Chief Justice's purported institutionalism? It's not real. It was never real. When the Chief Justice says he is committed to the Supreme Court as an institution, that simply means he is committed to the Supreme Court as he sees it. The man cannot separate the two concepts. I'm sure John Marshall suffered from the same delusions of grandeur. Roberts is a judicial supremacist, and in particular, a SCOTUS supremacist. He could not brook the notion that lower court judges could settle this major question of national significance. It would have been untenable for Chief Judge Garland, the SCOTUS Susan Lucci (always on the short-list but never a winner), to have the final say. And the notion that the outgoing Obama Administration could lock in a policy without the Chief Justice having his say was also untenable. Roberts saved Obamacare so he earned this right to intervene. Thus, the modern shadow docket was born not to hurt a liberal president or help a conservative president. It was born to ensure the Supreme Court remained Supreme. Trump v. CASA, decided a decade later, was a manifestation of that philosophy.
When Roberts publicly rants about institutionalism, his colleagues have to roll their eyes. This is what we would call a loss of leadership. The other justices cannot take him seriously. It is unsurprising then there are so many leaks, even as the Chief purports to clamp down. In any other field, a CEO or head coach with this track record would have been long ago removed. But not on the Supreme Court.
Roberts should have stepped down in 2020. I think the Supreme Court would be much healthier today with anyone else at the helm--including Elena Kagan. Justices Thomas and Alito are the glue holding the Court together. They should stay as long as they can. The Chief Justice, by contrast, is still stuck in his own world. Maybe the Chief Justice should take a deep look in the mirror and realize that he bears a lot of the blame for the current crisis.
I've often said that my favorite Chief Justice Roberts opinions are his dissents. Why? I know he actually believes what he is writing. His majority opinions are always so guarded, as he is trying to keep the Court together and maintain the "institutionalist" credo. But the dissents are authentic. This was especially true in Roberts's solo dissent in Uzuegbunam. The same rule applies to Roberts's internal communications that are not meant for public consumption. Unfortunately, we only find out about these internal communiques through leaks. Most recently, I was impressed when Roberts told Judge Boasberg to chill out. (Query whether that interaction might require the Chief's recusal in the appeal of JEB's contempt crusade.)
The latest New York Times reporting fits the mold as well. Here, we get insights into how Roberts views emergency docket relief.
First, Roberts addresses one factor of the balancing test: will four Justices grant cert?
I have little doubt that whatever the outcome of the proceedings in the D. C. Circuit, there will be a petition for cert. I find it very likely that four this members of Court will vote to grant the petition, again regardless of the outcome below.
This element has long bothered me. There is an easy way to know if four Justices will vote to grant cert: ask them. Still, here we see Roberts speculating on what three of his other colleagues would do. Frankly, if five Justices are willing to grant a stay, that is proof positive there are four votes for cert. So this factor seems somewhat irrelevant.
Second, Roberts sketches out his views on the Major Questions doctrine, in light of UARG:
As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a "long-extant statute" to "bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization." Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014). The applicants also raise a strong argument that regulation of power plants under §7412 precludes the EPA's promulgation of this rule under §7411(d).
I realize the New York Times fixated on the emergency docket aspect of the memorandum, but from a jurisprudential perspective, it is significant that Roberts locked in on the MQD as the basis for relief is significant. Presumably Justice Scalia also favored this approach to the MQD, though he would not live to see the outcome.
Third, Roberts speculates about how long the petition will take to get to the Court:
The applicants also meet the third criterion for a stay, irreparable harm. The D. C. Circuit will hold oral argument on June 2 , 2016, so a cert petition is not likely to be considered by this Court until this winter. Depending on the timing of the D. C. Circuit's decision- and taking into account the potential for en banc review it is possible that this Court will not rule on the merits until OT2017.
Litigants routinely do this sort of calculation, in light of the fact that there is such a long lead-time between briefing in the circuit court and a decision by SCOTUS. The Solicitor General will sometimes ask for a briefing schedule that permits resolution during the current term. Apparently, the Justices do this math as well. For example, I speculated that the Court sat on the petition for Students for Fair Admissions to kick it to the following term--after Dobbs. But on the flip side, the Justices can also rush a case to get it decided during a particular term.
The Dobbs leak and the Clean Power Plan leak are very different. The Dobbs leak was designed to impact a pending case. Whether you believe that a conservative leaked the opinion to lock down the votes, or that a liberal leaked the opinion to shift the votes, all roads leads to an attempt to influence the outcome. But the Clean Power Plan leak serves a very different purpose. The case was decided a decade ago. The actual legal issues are no longer important. The Clean Power Plan is long since dead. Rather, the ostensible purpose of this leak is to attack the Supreme Court's legitimacy. As the saying goes, "Burn it down."
Where did the leak came from? Within a few moments of reading the article, a name came to mind. It wasn't that hard. No, I won't say that name, at least at this moment. It is a very serious allegation to charge anyone with this act. And indeed, the person I have in mind may not have been the source who gave it to the New York Times, but a third party conveyed it. For all we know, this ten-year old set of documents has been passed around many times. Secrets in Washington, D.C. do not stay secrets for long. It is entirely possible many people knew about these records. We should all be careful before accusing anyone publicly. But I suspect this name will come out in the not-too-distant future.
What can be done about this leak? I'm sure Chief Justice is furious. He has not had a good week. This report comes only a few days after Justice Sotomayor attacked Justice Kavanaugh, declined to apologize the next day, and released what looked to be a forced apology. Moreover, the New York Times depicts the Chief in a very unflattering light as being the Anti-Prometheus of the Shadow Docket. (Prometheus sheds light, Roberts, apparently, did the opposite.) I suppose the Supreme Court Marshal can initiate another investigation. Records presumably exist about who had access to the various memos, including, as Jon Adler speculated, what appears ot be a non-circulated version of Justice Sotomayor's memo. There is a limited universe of people who would have access to that memo. Reconstructing that distribution list a decade later may be hard, but it can be done. I suppose DOJ could investigate--assuming a federal law was violated--but the statute of limitation would have run years ago. The House or Senate Judiciary Committees could hold hearings and maybe even issue subpoenas.
What do we make of the Court's internal procedures? Well, for starters, this is the first public reflection of how the Roberts Court handles emergency docket orders internally. Justice Kagan has complained that the Court decides emergency issues without the benefit of oral argument. Here, the Justices circulated and shared formal memoranda back and forth. They are fairly substantive and polished. Given the date stamps, these memos would have had to have been prepared in a span of hours. And the memos are written in the distinctive voice of the Justices, so the clerks are not driving the train here (other than pulling footnotes). The Supreme Court operates as a sort of a law firm, with partners shooting off memos to one another.
What about legitimacy? The thrust of the New York Times story is that the Clean Power Plan set the Court down a path of illegitimacy. But there is a different perspective. Allowing the D.C. Circuit to have the final say on the matter would weaken the Supreme Court's legitimacy. All of the critics of the Supreme Court's "shadow docket" are content when the D.C. Circuit or Ninth Circuit decides cases with expedited briefing and no oral argument. All lower courts have shadow dockets. Justice Alito's memo speaks to this issue directly:
And this harm, once incurred, is by nature irreparable. Coal plants are not shuttered - nor solar plants purchased -at the drop of a hat. Of course, the Administrator knows this, which is why she effectively implied that, if the rule is allowed to continue in force, judicial review will be beside the point. That leads me to what is, in my view, the most pressing reason to grant a stay. A failure to stay this rule threatens to render our ability to provide meaningful judicial review- and by extension, our institutional legitimacy- a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. Ifwe fail to stay the rule and maintain the status quo, our resolution ofthe merits will not matter because the regulated parties will have complied. Instead of robust judicial review, our opinion will be a mere postscript.
Either the Supreme Court is supreme or it is not. Chief Judge Garland and his colleagues should not have had the final say on this matter. Chief Justice Roberts would.
I'll close by noting the elephant in the room--or is it the donkey? In February 2016, it looked like Hillary Clinton would win the election. I'm sure the Chief thought there would be plenty of time to litigate this issue during the next administration. Of course, as history relates, Trump won.
I'll talk about the substantive legal analysis from the Chief Justice and Justice Kagan in another post.
I remember the evening of February 9, 2016 very clearly. I had just arrived at Bush Intercontinental Airport, like I had hundreds of times before. It was around 5:00 pm. I had just cleared security in Terminal C, and was turning left near Gate C42 (yes, I know all the gates by heart). I looked at my phone and saw a tweet that the Supreme Court had granted an emergency stay order in the Clean Power Plan. I remember being surprised. I could not recall the Supreme Court ever granting a stay while a case was pending before the Supreme Court. I thought, wow, Justice Kennedy actually agreed with the conservatives. Remember this was a few months after June 2015, which was the worst term for conservatives in recent memory. I then proceeded to my gate and did not give the issue much more thought for a few days.
Then came February 13, 2016, the day Justice Scalia died. I recently wrote about that memorable day on the tenth anniversary. But at some point on that day, a thought crossed my mind: Justice Scalia's last, and perhaps most important vote, was to grant the emergency stay. Had the deliberations stretched a few more days, there would not have been five votes for a stay. The American and global economy would be very different today. In recent months, I've given several talks about the emergency docket. I always say the birth of the modern shadow docket was the Clean Power Plan vote. Others apparently agree.
Of course, the New York Times's latest reporting on the Supreme Court leaks came during Shabbat. As I signed online, my computer nearly combusted. I'll have much more to write in due course.
It is noteworthy that Justice Scalia did not contribute a memo to the conference. Why? He was probably very busy. In Unraveled, I discuss where Justice Scalia was after the Supreme Court heard its last oral argument of the sitting on January 20, 2026. The case was Sturgeon v. Frost, fittingly argued by Justice Scalia's law clerk, and future federal judge, Rachel Kovner:
On January 20, 2016 – one year to the date before the forty-fifth president would be sworn in – the Supreme Court heard oral arguments in Sturgeon v. Frost. The facts of the case were simple enough. John Sturgeon piloted his hovercraft across a river in an Alaskan park. Alaska law permits the use of the hovercraft. Federal law does not. The National Park Service ordered Sturgeon to remove his hovercraft from the natural preserve. Sturgeon countered that the river was owned by Alaska and, due to the forty-ninth state's unique status, was excluded from federal jurisdiction. Arguing for the federal government was Rachel Kovner, assistant to the solicitor general, who clerked for Justice Scalia nine years earlier.1 About fifty-three minutes into the hour-long argument, Scalia posed his final question of the day: "And if you read that back into Section 100751, it seems to me the Park Service doesn't have jurisdiction." Kovner replied to her former boss, as she no doubt had said many times before in chambers, "We agree, Your Honor." Sturgeon would be the last case argued before a month-long break began. During this recess, the justices scattered across the globe.2 Some stayed local. Justice Sotomayor visited several schools in her hometown of New York City. Justice Thomas traveled to Gainesville to speak to law students at the University of Florida. Chief Justice Roberts visited New England Law School in Boston. Others traveled abroad. Justice Breyer, who is fluent in French, lectured at the Institut Français in Paris. Justice Ginsburg journeyed to the European University Institute in Florence to talk about the "Notorious RBG." During that recess, the Court's greatest globetrotter was the Justice least concerned about international law.3 Fittingly, Justice Scalia was spreading American law abroad. At the Ninth Circuit Judicial Conference in July 2016, Justice Kennedy recalled that Scalia told him, "Tony, this is my last big trip." On January 24, Scalia traveled to Singapore with his friend and coauthor Bryan A. Garner. A law professor at Southern Methodist University, Garner is the preeminent American lexicographer. On January 28, Scalia gave the Lee Kuan Yew Distinguished Lecture at the University of Singapore on judicial interpretation of legal texts.4 On February 1, Justice Scalia and Justice Kemal Bokhary of Hong Kong's Court of Final Appeal hosted a dialogue on judges and democracy.5 The next day, Scalia and Garner discussed their second coauthored book, Reading Law, at the Chinese University of Hong Kong.6 Garner reminisced that during their busy trip, his colleague was "unbelievably energetic and always on the go," even after working fourteen-hour days.7 On February 3, their final day in Hong Kong, Garner and his wife Karolyne had their palms read by a soothsayer at a Taoist temple. "Nino, you ought to get your palm read," Garner said. Scalia replied, "No. I don't want to know when I'll die." Garner nudged him, "Come on!" Scalia dissented, "No." After his worldwide tour, Scalia traveled from the Far East to West Texas. On the afternoon of Friday, February 12, Scalia checked into the "El Presidente" suite at the Cibolo Creek Ranch, a 30,000-acre resort outside of Marfa.8 That evening, Scalia attended a private dinner with forty other guests.9 Toward the end of the meal, he retired to bed. The next morning, when he did not arrive for breakfast, an employee of the ranch checked in his room. Scalia was found dead in his bed. A priest was called to administer last rites. Scalia was seventy-nine years old. He was survived by his wife Maureen, nine children, and thirty-six grandchildren. The justice was seven months short of his third decade on the Supreme Court.
Blackman, Josh. Unraveled: Obamacare, Religious Liberty, and Executive Power (pp. 477-479). (Function). Kindle Edition.
I will have much more to say about this leak in due course.
From yesterday's decision by Judge Jorge Alonso (N.D. Ill.) in Rosado v. Bondi:
Plaintiff Kassandra Rosado runs a Facebook group called "ICE Sightings – Chicagoland" and Plaintiff Kreisau Group runs a phone application called "Eyes Up." Both allow users to post videos and information regarding ICE activity. Plaintiffs allege that Defendants coerced Facebook into disabling the Chicagoland Facebook group and coerced Apple into removing Eyes Up. Plaintiffs contend that this violated their First Amendment rights ….
Plaintiff Kassandra Rosado created "ICE Sightings – Chicagoland" in January 2025 as a Facebook group for people to post videos and information regarding ICE activity. On October 12, 2025, social media influencer Laura Loomer posted a link to the Facebook group and tagged Pamela Bondi and Kristi Noem. On October 14, Bondi posted: "Today following outreach from [the DOJ], Facebook removed a large group that was being used to dox and target [ICE] agents in Chicago." Also on October 14, Defendant Noem posted: "Today, thanks to [the DOJ], Facebook removed a large page being used to dox and threaten our ICE agents in Chicago."
Around October 14, Facebook disabled the group and notified Rosado that the group "went against the Community Standards multiple times." …
Plaintiff Kreisau Group created "Eyes Up" in August 2025 as a phone application for people to post videos and information regarding ICE activity. Around October 2, 2025, Apple removed several apps that shared information regarding ICE activity, including ICEBlock, Red Dot, and Eyes Up. Speaking to Fox News on October 2, Defendant Bondi stated: "We reached out to Apple today demanding they remove the ICEBlock app from their App Store – and Apple did so." And on October 8 Bondi made a public statement that "we had Apple and Google take down the ICEBlock apps."
Apple informed Kreisau Group that Apple had removed Eyes Up from the App Store after receiving "information" from "law enforcement" that the app violated Apple's guidelines. Apple stated that the app violated guideline 1.1.1, which prohibits "defamatory, discriminatory, or mean-spirited content."
The court concluded that plaintiffs had standing to challenge the government action:
A New York Times scoop reveals that Chief Justice Roberts was concerned that the EPA would (again) get away with imposing unlawful burdens on utilities.
The documents confirm what a few of us suggested at the time: The Court's majority was concerned that, without a stay, the Environmental Protection Agency would get away with imposing unlawful regulatory burdens on electric utilities, as has occurred with the mercury regulations held unlawful by the Court in Michigan v. EPA.
As a memo by the Chief Justice notes, the EPA had crowed that the Court's Michigan decision was effectively irrelevant because utilities had been forced to spend billions of dollars to comply while waiting for the litigation to resolve, and there were reasons to fear history would repeat itself. As the Chief Justice wrote in one memo:
Past experience makes the case for irreparable harm: On June 29 2015 we ruled that the EPA's Mercury and Air Toxics Standards violated the Clean Air Act See Michigan v EPA, 135 S. Ct 2699. One day later the EPA announced that it was confident it was still on track to reduce the targeted pollutants in part because the majority of power plants are already in compliance or well on their way to compliance Janet McCabe Acting Asst Admin for Office of Air and Radiation In Perspective: the Supreme Court's Mercury and Air Toxics Rule Decision In other words the absence of stay allowed the agency to effectively implement an important program we held to be contrary to law
While the posture is different, the Chief Justice's concerns are in line with those that prompted to Supreme Court to make pre-enforcement review of agency regulations the default presumption in 1967's Abbott Labs trilogy: Firms should not be forced to make substantial (and largely unrecoverable) investments to comply with regulations that may not be lawful exercises of agency authority.
The memos also reveal that the Chief Justice, if not the Court's entire conservative wing, understood the "major questions doctrine" as a thing, highlighting what the Court had held in UARG v. EPA--another case invalidating EPA regulations governing greenhouse gas emissions. Recall that the Chief also highlighted this UARG language in his King v. Burwell opinion. Again, from the Chief's initial memo:
[The EPA's] interpretation of §7411 represents a new approach to the statute. Past rules under $ 7411(d) have contemplated that utilities could comply with the articulated "best system of emission reduction" solely through installation of control technologies (e.g. , scrubbers)-which seem to fit more comfortably within the statutory phrase. As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a "long-extant statute" to "bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization." Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014).
The NYT obtained responsive memos from Justices Breyer, Kagan, and Sotomayor, and a memos supporting the Chief's position from Justice Alito and, pivotally, Justice Kennedy. The memos make clear that, post-UARG, the conservative were very wary of efforts by the EPA to aggrandize its own authority in pursuit of greenhouse gas emission reductions. The conservative justices did not want judicial review of agency action to be irrelevant. As Justice Alito wrote:
A failure to stay this rule threatens to render our ability to provide meaningful judicial review--and by extension our institutional legitimacy--a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. If we fail to stay the rule and maintain the status quo our resolution of the merits will not matter because the regulated parties will have complied Instead of robust judicial review our opinion will be a mere postscript.
Justice Kennedy ultimately concurs on the grounds that, if a stay of the CPP is inevitable (suggesting he agreed with the Chief's preliminary view of the merits), it might as well issue now.
The liberal justices, for their part, were wary of setting a precedent of this sort and suggested that an order could deny the stay, but suggest states seek extensions of the regulatory deadlines before asking the Supreme Court to take action (an approach similar to what the Court would later do in the Juliana litigation--deny relief with the suggestion that others should reconsider their position). While opposing a stay here, it is not clear any of the liberal justices (or, for that matter, any of the conservative justices) understood how issuing a stay here would encourage litigants to pursue such relief more aggressively in the future.
Note that had the D.C. Circuit stayed the CPP (which would have been appropriate given the lead times), the Court would not have been in the position of considering any of these questions. This is interesting because had the D.C. Circuit not later insisted on issuing its opinion invalidating the Trump Administration's repeal of the CPP on the eve of President Biden's inauguration in 2021, we would never have gotten the Supreme Court's ultimate decision invalidating the CPP in West Virginia v. EPA (which I dissected here). It was the D.C. Circuit's insistence on having its say in 2021, and issuing a decision that put the CPP back in force (even as the court stayed its mandate), that allowed the litigation against the CPP to continue.
The NYT does not reveal where the memos came from, but the memos contain one potential clue. All of the memos appear to be photocopies of the original documents on letterhead with the authoring justice's initials or signature--save one. The memo from Justice Sonia Sotomayor's chambers is not on letterhead, has no signature or initials, and (the NYT notes) appears to have the wrong date (likely a typo--"16" instead of "6")[Alternatively, the 16 could have been autodated when printed later on plain paper.] This suggests the source had access to a non-final or non-circulated version of the Sotomayor memo, but the NYT gives no indication of why that might be.
If the memos came from Sotomayor's chambers--and I stress the if--this would be the second climate-related case in which something unusual happened in Justice Sotomayor's chambers. The other was AEP v. Connecticut, when Sotomayor was on the U.S. Court of Appeals for the Second Circuit. Then-Judge Sotomayor was on the AEP panel, and as I noted at the time, the case sat for years after argument and supplemental briefing without decision. The delay was so long that the issue was raised at her confirmation hearing. The decision ultimately issued after Sotomayor was confirmed, without her participation. The Supreme Court then unanimously reversed that opinion with Justice Sotomayor recused.
From an order last Dec. 11 (but just made available on CourtListener yesterday) by Magistrate Judge Andrew Edison (S.D. Tex.):
Earlier today, I issued a Memorandum and Recommendation [Dkt. 113]. Under the rules, objections are due on December 29, 2025. I do not want anyone working the last two weeks of the year. You should be spending time with family and friends over the holidays. I will, therefore, move the deadline for the parties to object to my Memorandum and Recommendation to Friday, January 9, 2026. Happy holidays to all!
Logo of the United Daughters of the Confederacy. (NA)
Earlier this week, Virginia Governor Abigal Spanberger signed into law a bill stripping property tax exemptions from various pro-Confederate nonprofit organizations:
On Monday, Virginia's governor, Abigail Spanberger, a Democrat and the state's first female governor, signed into law a bill that eliminates tax exemptions for organizations connected to the Confederacy.
HB167, passed by Democrats in the Virginia house and senate, specifically removes the Virginia division of the United Daughters of the Confederacy, the Stonewall Jackson Memorial, the Virginia division of the Sons of Confederate Veterans and the Confederate Memorial Literary Society, along with other groups, from the state's list of organizations that are exempt from state property taxes.
Thus, I very much sympathize with what the New York Times describes as the bill sponsors' desire to "distance Virginia from its Confederate past." As a Virginia resident and a state employee (professor at a Virginia state university), I agree the state should repudiate the Confederacy rather than honor it.
But this is not the way to do it. It seems obvious the groups in question lost their tax exemptions because of state officials' hostility to their views. While those views are indeed odious, eligibility for tax exemptions should not depend on viewpoints. Making them so dependent violates the First Amendment, which - among other things - forbids conditioning government benefits and exemptions on political and social views.
Imagine a red state legislature enacting bill discriminatorily denying nonprofit tax exemptions to left-wing "social justice" groups, or groups promoting racial minority group rights (such as the NAACP), groups promoting abortion rights, and so on. Such a bill would obviously violate the First Amendment. The Virginia law targeting pro-Confederate groups is much the same, differing only in its ideological valence.
One could try to defend the bill on the grounds that it was just amending a preexisting law specifically singling out these groups for property tax exemptions. If the state legislature can pass a law singling out certain groups by name for tax exemptions, then it can also repeal it.
I agree that the state is not required to continue these property tax exemptions forever. But there is an important difference between the original law, and this new one. The preexisting law gave property tax exemptions to a wide range of nonprofit civic and historic preservation groups, not just those espousing a particular ideology. The groups appear to have been chosen based on function not viewpoint. Here is the complete list of organizations granted exemptions, which includes veterans groups, historic preservationists, groups promoting the arts, and more:
the Association for the Preservation of Virginia Antiquities, the Association for the Preservation of Petersburg Antiquities, Historic Richmond Foundation, the Confederate Memorial Literary Society, the Mount Vernon Ladies' Association of the Union, the Virginia Historical Society, the Thomas Jefferson Memorial Foundation, Incorporated, the Patrick Henry Memorial Foundation, Incorporated, the Stonewall Jackson Memorial, Incorporated, George Washington's Fredericksburg Foundation, Home Demonstration Clubs, 4-H Clubs, the Future Farmers of America, Incorporated, the posts of the American Legion, posts of United Spanish War Veterans, branches of the Fleet Reserve Association, posts of Veterans of Foreign Wars, posts of the Disabled American Veterans, Veterans of World War I, USA, Incorporated, the Society of the Cincinnati in the State of Virginia, the Manassas Battlefield Confederate Park, Incorporated, the Robert E. Lee Memorial Foundation, Incorporated, the Virginia Division of the United Daughters of the Confederacy, the General Organization of the United Daughters of the Confederacy, the Memorial Foundation of the Germanna Colonies in Virginia, Incorporated, the Lynchburg Fine Arts Centers, Incorporated, Norfolk Historic Foundation, National Trust for Historic Preservation in the United States, Historic Alexandria Foundation, and the Lynchburg Historical Foundation.
The new law strips property tax exemptions from the pro-Confederate groups, while leaving them in place for all the others. That's pretty obvious discrimination based on political ideology. The Virginia state legislature could end this tax exemption for all the groups in question, or reduce it in various ways. It could eliminate some groups but not others based on nonideological criteria. But it cannot do so based purely on the views of the groups in question.
Such viewpoint discrimination with respect to tax exemptions and government benefits is a potentially very dangerous tool that government can use to penalize opposition (even as it rewards its supporters). If courts were to uphold the Virgina law against First Amendment challenges, it would set a dangerous precedent that state and federal officials of various political stripes could exploit to target their opponents.
Even if you trust our current Democratic governor and state legislature with this kind of power, I bet you don't have similar confidence in the Republicans (and vice versa). The Trump Administration has been trying to find ways to strip tax exemptions from nonprofit groups opposed to its agenda, including various left-wing ones. If you think Trump's efforts along these lines are unconstitutional (and they are), then the same reasoning applies to the new Virginia law.
The truth is neither Democratic politicians nor Republican ones can be trusted with the authority to dole out and remove tax exemptions and other benefits based on ideology. That's one of the reasons why we have a First Amendment in the first place.
And here, as elsewhere, freedom of speech cannot be limited to those who espouse viewpoints we like. As Supreme Court Justice Oliver Wendell Holmes famously put it, this right must include "freedom for the thought that we hate." It must extend even to those with deeply odious and reprehensible views - including, in this case, apologists for the Confederacy.
People often ask me if I always wanted to be a law professor, or if I always knew I wanted to be a lawyer. The answer to both questions is no. My entire youth focused on technology. I went to Staten Island Technical High School, a leading engineering high school. For college, I received a degree in Information, Sciences & Technology at Penn State. I did not take a single constitutional law or political science class in my undergraduate education. (I took one class on business law, but that doesn't really count.)
After graduation, I would begin working at the Department of Defense in Arlington on network security. During the summer between my Junior and Senior year, I decided to apply law school to focus on Intellectual Property. It was not a well thought-out decision. I had no lawyers in my immediate family and I knew nothing about IP. But law schools published these shiny pamphlets promising salaries of $160,000, so I thought it could work well.
I studied for the LSAT for a few weeks. I took two or three sample tests, and did well enough. I took the actual LSAT in October of my senior year and did not plan to take it again. I then applied early decision to George Mason Law School as an evening student. My plan was to work during the day at my office in Arlington, and go to class at night. Mason had a well-regarded IP program. I was aware of the conservative and libertarian reputation (Professor Walter Williams would often guest host on the Rush Limbaugh show), but that is not why I applied there. I did not apply anywhere else. I discussed this background in an article, From Being One L to Teaching One L.
During my 1L year, I fell in love with Constitutional Law. Indeed, for evening students, ConLaw was not taught till the third semester. But I regularly attended FedSoc events on campus and the National Convention. I was hooked. For my 1L summer, I attended the Institute or Justice Bootcamp (as it was then called), and my eyes were opened. I still remember the moment when Clark Neily convinced me that the war on drugs was a mistake. (Clark also told me about this new Second Amendment case he was working on, Parker v. District of Columbia.) Still, I did not even conceive that a career in constitutional law was possible for me. The most likely path, I thought, would be BigLaw.
I applied for on campus recruiting during the start of my 2L year. (I realize today firms recruit students with no grades, but there were still timelines in 2007.) I managed to secure a summer associate position with a D.C. firm. I was beyond thrilled for the opportunity, and the compensation. At the time, the $3,500/week salary was more than double what I was making at the DOD. In the lead-up to the summer, the firm circulated a "get to know you" questionnaire. One of the questions was "What are you interested in?" Of course, I wrote "The Constitution." I didn't give the form much thought.
Summer arrived. After the first day of work, we had a cocktail reception at a swanky club nearby. (To this day, I feel guilty about how much money the firm spent on entertaining law students.) One of the partners came over to me and asked "Were you the person who said he was interested in the Constitution?" He did not mean it in a good way. I said, "Yes." He replied, "The Constitution has nothing to do with my practice." Again, this was my first day on the job, where I was trying to impress the partners to make me a permanent offer.
Perhaps the prudent course for a young Josh would have been to make a joke, and laugh it off. But that's not what I did. I knew the lawyer worked on military contracts. I whipped out my pocket Constitution, and I turned to the Armies Clause in Art. I, § 8, Cl. 12, the Armies Clause. I read it, " The Congress shall have Power . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. . . ." I said every payment that you work on is authorized by this clause. The partner looked back at me, dumbfounded. He had built a successful practice on military contracts, though I doubt he ever realized or cared what the constitutional basis was those contracts.
At that moment, I realized my future was not in Big Law. The rest of the summer was enjoyable, but I regularly felt something was lacking. For example, I was working on a memo in a government contracts case, and I realized there was a notice problem, so I raised a Due Process argument. The partner told me (correctly) that constitutional issues could not be raised in this administrative proceedings, and to stick to the Federal Acquisition Regulation (FAR). By the middle of the summer, I decided that I wanted to clerk. (Back in the day, you would apply to clerkships during your 2L summer.) During my 3L year, I realized that academia would be my path. And I pursued that path. The rest is history.
In a funny way, I may owe my entire career to the obscure Armies Clause. The irony is that the "Two Years" provision of this clause has largely been ignored. Appropriations for the military routinely stretch beyond two years. I have been aware of this problem, but never gave it much thought.
That was, until I saw a new article titled Reviving the Military's Term Limit. Professors Matthew B. Lawrence and Mark Nevitt argue that the two-year limitation was obliterated by 1904 Solicitor General opinion. If this clause's original meaning is restored, then the partner (who may not still be in practice) will realize how the Constitution affects his work.
New Hampshire is not the only state subject to court-ordered commandeering. Next week, the U.S. Court of Appeals for the Eleventh Circuit will hear oral argument in Bear Warriors United v. Lambert, in which Florida is appealing a district court order effectively commandeering the state under the Endangered Species Act.
Bear Warriors United (BWU) is an environmental organization "dedicated to defending Florida's wildlife and serving as a powerful voice for nature." Among the species BWU seeks to protect is the manatee, which is currently listed as a "threatened" species under the Endangered Species Act (ESA).
In 2022, BWU filed suit against the Florida Department of Environmental Protection (FDEP) alleging that it was violating the ESA by failing to adopt and enforce sufficiently stringent regulations governing nitrogen discharges from septic tanks and wastewater treatment plants into the Indian River Lagoon, which is frequented by manatees. This failure, BWU alleges, contributes to eutrophication and the loss of seagrasses upon which the manatees rely and is thus a "take" under Section 9 of the ESA, which prohibits actions that "harm" listed species.
At heart, BWU's claim is that the FDEP is "taking" manatees because it is failing to control the private and other activities that threaten manatee populations. As the district court noted, it is "FDEP's ongoing failure to use its authority to regulate" more stringently that is at issue. Therein lies the problem.
There is reasonable debate about the extent to which the ESA's definition of harm encompasses conduct that affects species indirectly. The Supreme Court embraced a relatively broad definition of "harm" in the Sweet Home decision that encompasses habitat modification that, in turn, impairs the feeding, breeding or nesting activity of listed species. Relying upon this definition, some courts have concluded that omissions--in this case, failure to prevent activities that could adversely affect species--qualify as "harm." This is a controversial conclusion, however, and the Trump Administration has proposed narrowing that definition.
Whatever the proper definition of "harm" is under the ESA, BWU's claim has a larger problem: Under its theory, state governments are obligated to use their regulatory authority to enforce a federal regulatory scheme. This is not a case in which effluent from a state-run sewage treatment plant or other state activities are allegedly harming a listed species. It instead involves a state failing to use its sovereign regulatory authority in a manner that serves the federal government's goals. This is textbook commandeering. Thus even if one is inclined to accept the broad definition of "harm" that some courts have accepted, it cannot be enforced against state governments in this fashion.
The district court dismissed Florida's commandeering concerns in a cavalier (and somewhat incoherent) fashion. After noting in one order that "the anticommandeering doctrine does not bar federal laws that 'regulate state activities, rather than seeking to control or influence the manner in which States regulate private parties'" (quoting Reno v. Condon), the court proceeded to accept BWU's argument that the ESA's take prohibition could be used to control how FDEP regulates private parties. In another order the court correctly noted that "the anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage" (quoting Murphy v. NCAA), but somehow missed that regulating private septic systems and wastewater treatment plants is not "an activity in which both States and private actors engage." It is, rather, precisely the sort of exercise of sovereign authority that only governments engage in, and is thus precisely what the anticommandeering doctrine protects from federal control.
This is not the first time a lower court has interpreted the ESA in a manner that violates the anticommandeering doctrines. In Strahan v. Coxe (1997), the U.S. Court of Appeals for the First Circuit concluded Massachusetts could be required to revoke licenses and permits for gillnet and lobster pot fishing under the ESA and Marine Mammal Protection Act without violating the anticommandeering doctrine. In the First Circuit's view, this was just federal supremacy in action, and the state was merely required to comply with federal law. But this misunderstands the dynamic. There is no question a state cannot immunize private action from federal prohibition, but this does not mean a state can be required to regulate or inhibit activity the federal government wishes to control, and this is true even if the state chooses to act within the relevant policy space. This is as true of gillnets and nitrogen discharges as it is of marijuana and gambling.
Although Strahan was wrong (as I discussed here at pp. 428-30), district courts have largely followed the First Circuit's reasoning. This has occurred even though, in 2018, in Murphy v. NCAA, the Supreme Court expressly held that the anticommandeering doctrine prevents the federal government from barring states from permitting a federally targeted activity (in that case, gambling) under state law.
The same principle applies in the environmental context. The federal government is free to regulate nitrogen discharges and other activities that harm listed species, and even to authorize citizen suits to assist in federal law's enforcement. It cannot require states to prohibit such activities, however. And just because a state has chosen to create its own regulatory apparatus, that apparatus cannot be required to apply standards dictated by federal law. Thus however expansively one is inclined to interpret the ESA's take prohibition, it cannot be applied as the district court did here.
I will be curious to hear how the Eleventh Circuit engages with these arguments next week, and whether it recognizes the errors of the First Circuit's analysis. There seems to be lots of confusion about commandeering these days. I also have a draft manuscript ("Conservation Commandeering") which goes into these arguments in greater depth. It will go up on SSRN soon. Until then, stay tuned.
