The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I encourage everyone to read Joan Biskupic's report for CNN. It reveals secrets from "behind closed doors" about the Supreme Court's term. She relies on "multiple sources familiar with the inner workings of the Court." This report has become something of an annual tradition for Biskupic. Last September, she provided a peek behind the curtain for the Census Case, and a few other matters. At the time, I asked why sources leaked internal deliberations to CNN.
Why was this information leaked? What is the potentially self-serving purpose for revealing this information?
I pose the same questions here. Why were these specific facts leaked. Let's take the reports one at a time.
First, Biskupic tells a very specific narrative about DHS v. Regents. Unlike the Obamacare case and the Census case, Roberts's vote did not change in the DACA case. From Biskupic's telling, Roberts cast his vote at conference in November.
Roberts' June decision saving the Obama-era Deferred Action for Childhood Arrivals program surprised advocates on both sides and even took some colleagues aback when he had first cast his vote many months earlier in private session, sources told CNN. … But the new reporting reveals that unlike Roberts' 2012 move to uphold Obamacare and separate 2019 action to ensure no citizenship question on the 2020 census, Roberts' action on DACA was not a late vote switch. He put his cards on the table soon after November oral arguments in the case and did not waver, sources told CNN. Roberts believed the administration had not sufficiently justified the rescission of the program benefiting some 700,000 young people and had then developed after-the-fact rationalizations.
This seems like a Pro-Roberts leak. It rebuffs the charge from last term with the Census case, that he changed his vote at the last minute. Don't forget that there was a full Court press on the Chief to consider how rescinding DACA would effect health-care workers during the pandemic. Biskupic reports that Roberts circulated his draft in late March, after the COVID-19 crisis blew up. That means it took him nearly four months to prepare it. (He was distracted a bit with the impeachment trial).
But by the time Covid-19 concerns were at the fore, Roberts was already writing an opinion that would protect DACA beneficiaries for now. He finished his first draft in late March.
Biskupic reports that Justices Ginsburg, Breyer, and Kagan were happy to join the draft opinion.
Three of the liberals responded enthusiastically to the draft opinion, CNN has learned, and asked for only minor changes.
The specifics were not nearly as important as the outcome. Though if the progressives held together, they could have created a 4-1-4 split that would have left DACA in place without a single rationale. And that fractured ruling would have made it harder for future DACA challenges to proceed on remand. I wonder if the Chief would have retaliated from such a plurality by flipping sides? Does he demand obedience if anyone threatens to write separately? In the end, the troika was willing to don the proverbial paper bag.
Biskupic also confirms that Justice Sotomayor was not so eager to join the Chief's majority.
The fourth, Justice Sonia Sotomayor, held off somewhat. She said she would join Roberts on much of the 5-4 judgment but expressed dismay that the chief had foreclosed a possible equal protection violation based on Trump's racist comments about Mexican immigrants. She soon sent around a draft opinion concurring in part and dissenting in part.
Finally, Biskupic reveals that Roberts voted to declare DAPA unlawful in 2016. That case split 4-4.
Roberts had generally supported Trump's immigration policies, and in 2016 had privately voted against a related program for parents, rather than children, who had come to the US without papers, sources said. (That case, United States v. Texas, produced a 4-4 vote behind the scenes, after the death of Justice Antonin Scalia, and no resolution on the merits.)
I had long suspected this vote, but now it is more-or-less confirmed. To reach that result, Roberts thought Texas had standing, that DAPA was subject to APA review (consistent with Regents), and that DAPA was unlawful (also consistent with Regents).
If Roberts still holds these view (who knows?) then Texas's challenge to DACA has a greater chance of success than I expected. Morever, the reliance interests at play in the Texas case are different. There is no injunction. (And Jonathan Adler observed that Roberts does not like injunctions). This case would appeal from a motion for summary judgment. Stay tuned.
Biskupic provides insights into a fairly minor case on the Court's docket: Georgia v. Public.Resource.Org Inc. The Court held that annotations to the Georgia Code could not be copyrighted. The 5-4 vote in this case was very unusual. Chief Justice Roberts wrote the majority opinion, which was joined by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, joined by Justice Alito, and joined in part by Justice Breyer. Justice Ginsburg wrote a separate dissent, which Justice Breyer joined in full. This case nearly split along Gen-X/Boomer axis.
At the time, there was some speculation that Justice Thomas lost the majority opinion, and that Chief Justice Roberts flipped his dissent to a majority opinion. Biskupic confirms this scuttlebutt:
Roberts' winning streak extended to a Georgia copyright dilemma, heard in December, when he was able to turn his dissenting opinion into the prevailing view during the drafting process. He captured the majority from Thomas, who had initially taken control of the case once votes were cast in their private session after oral arguments.
The Georgia case decided in April, testing whether a state can copyright its annotated legal code, was not a high-profile one. But it offered an example of the rare but consequential vote-shifting that can occur behind the scenes and make a difference in the outcome of a case and law nationwide.
The court ruled that federal copyright protections do not cover annotations in a state's code, based on the general principle, Roberts wrote, "that no one can own the law."
Biskupic does not tell us who flipped. My money is on Kagan. This seemed like a prudent move to make the Chief feel more powerful on a case that didn't really matter. In any event, another pro-Roberts leak.
Biskupic also provides some insights into the Court's Second Amendment cases this term. In April, the Court issued a per curiam decision in NYS Rifle & Pistol. That opinion held the controversy was moot. Biskupic reveals that Kavanaugh wrote this opinion, but not by himself.
CNN has learned that resolution of that case took many twists and multiple draft opinions. Guided by Roberts, Justice Brett Kavanaugh crafted much of what turned out to be an unsigned "per curiam" opinion — joined by six justices, including Roberts—returning the case to lower court judges.
Wow! "Guided by" As if Roberts was Kavanaugh's "sherpa." How demeaning of the Junior Justice? Whoever leaked this fact was trying to make Roberts look powerful, and Kavanaugh look weak. And that "guided by" line looks even worse in light of Kavanaugh's separate concurrence:
Kavanaugh also wrote a separate statement—this one he signed—suggesting it was time for the justices to resolve conflicting interpretations of Second Amendment rights.
Challenges to other firearms regulations were pending and conservatives who had wanted to clarify the scope of the Second Amendment had to consider whether to bring the issue back to the justices.
In that concurrence, Kavanaugh wrote:
And I share Justice ALITO's concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
At the time, I read Kavanaugh's concurrence as a signal that there were the votes to grant another Second Amendment case. Kavanaugh is savvy enough, and would not have written what he wrote unless he thought the Court would pick up another case. I was optimistic.
In hindsight, Kavanaugh was wrong. Biskupic reports that at the conference, Roberts signaled that he would vote to uphold the gun control laws:
Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights.
It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in 2008 and 2010 voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.
Finally, on Blue Monday, the Court denied review in 10 Second Amendment petitions.
In mid-June, the high court turned down petitions from 10 challenges to state laws limiting the availability of firearms and when they can be carried in public.
Justice Thomas dissented from the denial of cert. Justice Kavanaugh joined part of Thomas's dissent. In hindsight, it seems Chief Justice Roberts played Justice Kavanaugh. Kavanaugh thought there were four votes to grant cert, and five votes to reverse. He was wrong. I sensed some hostility from Kavanaugh towards Roberts later in the term–especially in South Bay and Calvary Chapel. There may be some built-up resentment.
Once again, this leak makes Roberts look powerful, and his colleagues meek.
Public Charge Rule
Biskupic's final substantive report concerns the so-called Public Charge rule.
In January, the same five-justice Roberts majority permitted the administration to proceed with a new income-related test for immigrants seeking green cards. The "public charge" rule denies permanent legal status to those applicants who even occasionally apply for Medicaid, food stamps or certain other public assistance.
In mid-April, the Petitioners asked the Court to lift the stay in light of the COVID-19 outbreak. On April 24, the Court issued two orders denying the requests. There were no recorded dissents. But both orders included the same concluding sentence:
This order does not preclude a filing in the District Court as counsel considers appropriate.
Of course, this sentence states the obvious. The parties can always seek relief in the District Court. And indeed, the New York Attorney General announced she would seek emergency relief in the District Court. (I am not aware of whether that relief was granted).
Biskupic provides some insights into the internal deliberations:
Three months later, amid a new dilemma over the rules arising from the Covid-19 virus, Roberts took the lead against immigrant interests yet mollified liberals poised to dissent publicly, CNN has learned….
According to sources, liberal justices believed the pandemic had transformed the situation and wanted the administration to clarify its rules to help places like New York hit hard by the virus in the spring. Roberts was unmoved and believed administration guidance was clear that immigrants could obtain Covid-19 care without consequence to their green-card applications. Other conservative justices agreed.
In other words, there were still five votes to leave the stay in place. The liberals considered whether to publicly dissent:
Liberal justices wrestled with how far to go with their contrary view and whether to publicly dissent, CNN has learned from inside accounts. Some justices also worried that if the request were rejected, the high court would appear to be unconcerned about people getting sick from the coronavirus. As liberal justices were again losing the argument, they wanted to offer some signal to the New York challengers that they could keep making their case in a lower court even as the Supreme Court ruled against them.
The Chief Justice wanted to avoid a dissent. So he added the single sentence to mollify the liberals:
Roberts resisted, CNN has learned. But the chief justice had an interest in tamping down the tensions and agreed to a modest compromise that sent the signal the liberals sought in the court's order and ensured that the challengers were not prevented from pressing ahead.
Again, that sentence didn't really add that much. It stated the obvious.
And once again, this leak is designed to make the Chief Justice look benevolent but firm.
Telephonic Oral Arguments
Biskupic also sheds some lights on the Court's proceedings after the COVID-19 shutdown. First, Roberts refused to use Zoom, even for internal meetings.
Roberts' power over their internal operations increased, too, as the justices were relegated to telephone and email communications. The court declined to use any Zoom-like option for its meetings, according to sources, so for the past four months the justices have not seen one another, even virtually.
And the Chief unilaterally decided that oral arguments would be held over telephone:
Roberts decided they would conduct arguments by phone when in-courtroom arguments were canceled because of the coronavirus pandemic.
And Roberts also decided on the format, based on the approach used by the D.C. Circuits. his colleagues vented their "grumbling[s]" to Biskupic's sources.
That decision caused some internal grumbling, CNN has learned, about the format and over how much time each justice would get to question a lawyer. Roberts ended up allowing each justice three minutes. Roberts carefully outlined the timing for the advocates and justices who would be connected by telephone. The plan was similar to an arrangement used a week earlier by a US appeals court in Washington for a nine-judge hearing.
Indeed, Roberts encouraged his colleagues to be "brief."
The chief justice thought there would even be sufficient time after justices had taken their turns for a round of open questioning. For that final round, he said, if anyone wanted to ask a question, he or she could try to break in. He encouraged them to be brief. The chief recognized that several justices might jump in at once. If that happened, he said, he would call on one of them to speak. If he mistakenly called on a justice who was not trying to break in, he had a fix for his colleagues: Try to ask a question anyway.
This final leak does not make Roberts look powerful. It makes him look petty, and unconcerned for his colleagues. He made these decisions unilaterally, without taking into consideration the views of the other Justices.
I suspect some of the leaks come from the Justices themselves; for example, the grumbling about the format for oral arguments. These topics seem much safer to carp about, and do not concern internal case deliberations. The leaks about the cases may come from Justices, or they may come from law clerks authorized to talk by the Justices. And the tenor of the leaks this term are all consistent with a great and powerful Chief Justice–like Oz! The DACA leak suggests that Roberts was in control from the beginning. The Public.Resource leak suggests Roberts can persuade colleagues to flip. The Second Amendment leak suggests that Roberts played Kavanaugh. And the Public Charge leak suggests Roberts is willing to throw crumbs to his liberal colleagues when he is ready to.
We all find these leaks scintillating. Indeed, I speculated on possible leaks after Bostock. But they need to stop. These internal deliberations should remain private.