The Volokh Conspiracy

Today the Supreme Court issued an order in Smith v. Scott, a qualified immunity case.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Zorn v. Linton, 607 U. S. ___ (2026) (per curiam). Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the petition for a writ of certiorari.

Smith had been floating around for a long time. It was first distributed to conference back in September 2025. Zorn, the case that caused the GVR, was first distributed to conference in November 2025, and was decided on March 23, 2026. Justice Sotomayor, Kagan, and Jackson dissented from that per curiam order.

The ordering here is unusual. Smith was in docket purgatory before Zorn, held while Zorn was being decided, and then about a month later, the Court GVR'd Smith with three dissents. The GVR did not happen right away, as per usual. The GVR took some time. There were some deliberations to be had. It is really unusual for a Justice to dissent from a GVR after an intervening precedent had been issued. Why shouldn't the lower court have an opportunity to apply the new precedent in the first instance? Isn't the usual criticism that the Supreme Court decides too much without giving the lower courts a shot? Perhaps it is even more unusual for the Court to GVR a case based on an un-argued per curiam decision--what some might call the "shadow docket."

I searched Westlaw for a case where one or more Justices would have denied the writ, following a GVR, but could not find anything. (Update: A few colleagues pointed out some cases that I had missed, though the practice is fairly rare.) It is common for Justices to vote to grant the writ to oppose a GVR. This split happened in Roman Catholic Diocese of Albany. But I can't recall a GVR accompanied by three Justices voting to deny. The GVR, by itself, does not settle the case. In theory at least, the matter could come back to the Court. But Justices Sotomayor, Kagan, and Jackson wanted to end this QI case right away. Or maybe this was some quiet protest of setting precedent on the emergency docket.

Not the most important news of the day, but I found it curious. Rest assured, no resignations are compelled by this order.

There have been troubling developments in both parties regarding antisemitism in the last few years, but I found this one especially perverse and disturbing. And of course, it shouldn't be just Jews who are worried about it, not only because everyone should oppose antisemitism, but because antisemitism on both left and right is based within the growing illiberal constituencies in both parties. In short, you don't have to be worried about antisemitism to wonder what the heck's going on when the Democrats nominate a supporter of a radical Islamist, Iran-allied anti-American terrorist group that has murdered hundreds of Americans, weeks after an immigrant tied to that group tried to murder dozens of American schoolchildren.

From the Jewish Insider's Josh Kraushaar:

The weekend ended with the news that Michigan Democratic delegates, at their statewide convention Sunday, nominated a Hezbollah supporter, Amir Makled, to the University of Michigan Board of Regents, choosing to oust a Jewish member, Jordan Acker, whose home and car were repeatedly vandalized with antisemitic graffiti and his family threatened.

Acker's offenses? He backed efforts to hold anti-Israel campus protesters at the University of Michigan accountable for assaulting police and engaging in intimidation of Jewish students, among other instances of student misconduct. He declined to support efforts to divest university funds from Israel, along with other members of the Board of Regents, as a radical faction of students had demanded.

Acker's non-Jewish Democratic ticketmate, Paul Brown, who also supported discipline against anti-Israel students, wasn't targeted and was renominated for election. But the Democratic delegates ousted Acker in exchange for Makled, who has posted on social media with comments praising Hezbollah's leaders and retweeted antisemitic messages from the conspiracy-theorizing influencer Candace Owens.

The results mark a new low for Michigan Democrats. Also over the weekend, Michigan Senate candidate Abdul El-Sayed told CNN that he believes the Israeli government is just as evil as Hamas.

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.

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.

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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.