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.
