Leaks From Moyle

My speculation was just the tip.

We are about a month removed from the end of the term, and Joan Biskupic has an exclusive on the deliberations behind Moyle v. United States. Kudos to Joan for getting a scoop, which have been pretty rare the past few years. And she suggests there is a "series," so perhaps we will see Part II tomorrow?

Again, I will offer my usual caveats about SCOTUS reporting. I will assume the Biskupic accurately relayed what was told to her, but I will also assume that the various leaks she received were intended to advance certain interests. In Washington, D.C., information is power, and those who wield it do so to achieve specific goals. Never forget that. There is a reason that President Biden announced his stepping down from the race on X, after having only told a few people. Biden, or at least his team, managed to pull off the impossible D.C. trick: keeping a secret.

For a refresher on Moyle, read my septet of posts (1, 2, 3, 4, 5, 6, 7).

First, Biskupic describes her sourcing this way:

This exclusive series on the Supreme Court is based on CNN sources inside and outside the court with knowledge of the deliberations.

In the past, Biskupic has attributed her material to a Justice, but here the sourcing is a bit more opaque: "sources inside and outside." We are likely talking about double- or even triple-hearsay. A Justice told something to someone inside the Court, and someone inside the Court told that thing to someone outside the court. Barely two years after Dobbs, the SCOTUS sieve is leaking again. Chief Justice Roberts should dust off that retirement letter.

Second, we learn about how the stay was granted in January. Biskupic reveals the vote was 6-3.

No recorded vote was made public, but CNN has learned the split was 6-3, with all six Republican-nominated conservatives backing Idaho, over objections from the three Democratic-appointed liberals.

To no one's surprise, Justice Barrett was the pivotal vote. At the time, she was persuaded by Idaho's arguments.

[Justice Barrett] would eventually deem acceptance of the case a "miscalculation" and suggest she had been persuaded by Idaho's arguments that its emergency rooms would become "federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States's mandate to perform abortions on demand."

But Justice Barrett would later change her mind.

Third, what crystalized the change was the oral argument.

But over the next six months, sources told CNN, a combination of misgivings among key conservatives and rare leverage on the part of liberal justices changed the course of the case. . . .

During the April 24 hearing, signs that the conservative bloc was splintering emerged.

Justice Amy Coney Barrett, who had earlier voted to let the Idaho ban be enforced, challenged the state lawyer's assertions regarding the ban's effect on complications that threatened a woman's reproductive health. She said she was "shocked" that he hedged on whether certain grave complications could be addressed in an emergency room situation. Barrett's concerns echoed, to some extent, those of the three liberals, all women, who had pointed up the dilemma for pregnant women and their physicians.

In this post, I highlighted how Justices Sotomayor and Kagan set up Justice Barrett's reversal. My speculation closely tracks Biskupic's accounting.

Fourth, Biskupic relays that at conference, there was no clear majority opinion.

The first twist came soon after oral arguments in late April, when the justices voted in private on the merits of the conflict between Idaho and the Biden administration. . . . There suddenly was no clear majority to support Idaho, sources said. In fact, there was no clear majority for any resolution.

As a result, Chief Justice John Roberts opted against assigning the court's opinion to anyone, breaking the usual protocol for cases after oral arguments.

When the Moyle opinion leaked, I wondered who would have assigned the majority opinion. Turns out the answer is that Roberts assigned it to no one.

Instead, as best as I can tell from Biskupic's reporting, Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett jointly wrote the opinion--while trying to keep the votes of Justices Sotomayor and Kagan.

Judging from the public arguments alone, there appeared a chance the court's four women might vote against Idaho, and the five remaining conservatives, all men, in favor of the state and its abortion prohibition.

But at the justices' private vote two days later, Roberts and Justice Brett Kavanaugh shattered any split along gender lines. They expressed an openness to ending the case without resolving it.

Fifth, Biskupic alludes to the various negotiations that happened. In short, Roberts-Kavanaugh-Barrett had to keep Kagan and Sotomayor on board. Why? I'm not entirely sure. In no universe would those two vote to keep the stay in place. So there were always going to be five votes to dissolve the stay. And Kagan and Sotomayor ultimately agreed with only part of the majority opinion. Was that so important? If there were three votes to DIG and three votes to affirm the Ninth Circuit, the end would be the same. Optics matter.

Biskupic writes:

Instead, a series of negotiations led to an eventual compromise decision limiting the Idaho law and temporarily forestalling further limits on abortion access from the high court. The final late-June decision would depart from this year's pattern of conservative dominance. . . . [Roberts and Kavanaugh] worked with Barrett on a draft opinion that would dismiss the case as "improvidently granted."

Biskupic offers some detail on how Barrett reversed herself. Here, she comes off looking extremely open-minded. Moreover, this sort of accounting suggests that she will be skeptical of claims from red-state AGs going forward. I'm not sure who leaked this information, but it is definitely painting Barrett in a particular light:

Barrett had come to believe the case should not have been heard before lower court judges had resolved what she perceived to be discrepancies over when physicians could perform emergency abortions, even if a threat to the woman's life was not imminent. . . . She would eventually deem acceptance of the case a "miscalculation" and suggest she had been persuaded by Idaho's arguments that its emergency rooms would become "federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States's mandate to perform abortions on demand." She believed that claim was undercut by the US government's renouncing of abortions for mental health and asserting that doctors who have conscience objections were exempted.

In essence, Barrett, along with Roberts and Kavanaugh, were acknowledging they had erred in the original action favoring Idaho, something the court is usually loath to admit. They attributed it to a misunderstanding of the dueling parties' claims – a misunderstanding not shared by the other six justices, who remained firm about which side should win.

To be sure, Roberts and Kavanaugh changed their minds as well, but they are just supporting actors here. Barrett is on center stage.

During internal debate from the end of April through June, the court's three other conservative justices – Samuel Alito, Clarence Thomas and Neil Gorsuch believed the facts on the ground were clear and that Idaho's position should still prevail. They said the 1986 EMTALA did not require hospitals to perform any abortions and could not displace the state's ban.

Alito, who had authored the 2022 decision in Dobbs v. Jackson Women's Health Organization overturning Roe, was adamant that the text of EMTALA required the opposite of what the Biden administration was advocating. He said the law compels Medicare-funded hospitals to treat, not abort, an "unborn child."

Sixth, Justices Alito, Gorsuch, and Thomas come across looking stubborn, obstinate, and intransigent. It seems that that no one supporting this troika talked to Biskupic. That is the problem with inside reporting. Sometimes you only get one side.

With Alito, Thomas and Gorsuch unchanged in their opposition to the proposed off-ramp, Barrett, Roberts and Kavanaugh needed at least two other votes for a majority to dismiss the case.

Two of the liberals, Sonia Sotomayor and Kagan, were ready to negotiate, but with caveats. They disagreed with Barrett's rendition of factual discrepancies and – more crucially – they wanted the court to lift its prior order allowing the ban to take effect while litigation was underway.

This was one case in which liberals, usually holding a weak hand because of their sheer number against the conservative super-majority, had greater bargaining power because of the fracture between the Barrett-Roberts-Kavanaugh bloc and the Alito-Thomas-Gorsuch camp. Debate persisted for weeks over whether the order allowing the ban to be fully enforced should be lifted.

I know Orin, Will, Sam, and most other law professors, disagree with my conception of judicial courage. But you don't have to take my word for it. Look what Justices Alito, Thomas, and Gorsuch wrote in Moyle:

Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable. . . .

Today's decision is puzzling. Having taken the unusual step of granting certiorari before Idaho's appeal could be heard by the Ninth Circuit, the Court decides it does not want to tackle this case after all and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this Court now ducks.

At the time, I observed:

And why did [Roberts, Kavanaugh, and Barrett] lose the will? The suggestion here is because this case is "emotional" and "highly politicized." Alito implies that Justices Barrett and Kavanaugh changed their minds because abortion is an "emotional" topic and the case has become "politicized."  . . . Alito accuses Barrett and Kavanaugh of ducking and hiding for cover.

Alito, Thomas, and Gorsuch ave said the same thing before. And they are saying the same thing I am. The conservative troika has a front-row seat of how Justices Barrett and Kavanaugh behave, and they use their words precisely. To be sure, I think these actions are likely to backfire, in the same sense that Justice Scalia alienated Justice O'Connor. But we should look to these hints from behind the red curtain to figure out how the Justices tick.

Seventh, that brings us back to Justice. Shortly after Moyle was decided, I wrote this about Justice Barrett:

The most important opinion here is from Justice Barrett. She is the Court's center. And, as I've said before, she seems to still be figuring stuff out on the job. Her Moyle concurrence expresses open regret to granting certiorari before judgment and a stay–not just because the facts on the grounds have changed, but that the Court accelerated the process when it shouldn't have. She also seems mad at Idaho for (as she sees it) exaggerating the justification for the stay.

This is almost, to a tee, what Biskupic wrote. I've made this point before: much of the "inside" information that Biskupic gleans from her sources is apparent to those who closely read the Court's docket. I assure you, I have no inside information, and make no effort to obtain any. It is far more fun to shoot in the dark, since I have no limitations on what I can write (as readers well know).

I sometimes wonder if Biskupic begins with really well-informed speculation (what Deadpool might call–spoiler alert–an "educated wish"), passes off that speculation as inside information, and then asks a source to comment or confirm on that apparent leak. From there, the information cascades down.

Finally, Biskupic quotes from Kagan's remarks before the Ninth Circuit Conference.

During a wide-ranging talk at a legal conference in Sacramento on Thursday, liberal Justice Elena Kagan said the court may have learned "a good lesson" from the Idaho case: "And that may be … for us to sort of say as to some of these emergency petitions, 'No, too soon, too early. Let the process play out.'"

In hindsight, this comment comes across somewhere between valedictory and gloaty.