The Volokh Conspiracy

I've often said that my favorite Chief Justice Roberts opinions are his dissent. 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.

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.

A few days ago, the D.C. Circuit sent the East Wing case back down to Judge Leon. In my view, the plaintiffs clearly have no standing. Judge Rao's separate opinion cogently explains why.

Judge Leon, undeterred, ruled against Trump again! The White House can continue with "underground" construction but not "aboveground" construction! I suppose Judge Leon is an expert in construction, as he seems to think these two levels can be separated! His new order had fewer exclamation points, but he still declined to address standing. Should this case get to SCOTUS, it will be very easy for the proceduralists to smack down this ruling on standing grounds.

Indeed, even President Trump gets the standing analysis. In a series of social media posts, Trump explains why the plaintiffs in this case lacks standing. I never know how much of Trump's tweets are his and how much come from his lawyers. But at a minimum, these postings (which seem to have been made aboard Air Force One) suggest Trump understands the jurisdictional issues.

Here, Trump points out (correctly) that the only possible plaintiff with an injury is a woman who walks her dog near the White House:

The person who filed the meritless and lawless suit on the desperately needed White House Ballroom, being built as a GIFT to America (without Tax Dollars!), a woman walking her dog, has absolutely NO STANDING to bring such a monumentally important case against our Country. The Trump Hating Judge's opinion is radically different from his first opinion, that was issued weeks ago, while still being unlawful and ambiguous, which never even addressed her COMPLETE lack of Standing. Every Political "Pundit" has said this case is meritless, even a JOKE, but it's not a joke to me, or the people of America. Too much hard work, time, and money spent in order that a Judge can claim that he ruled against "DONALD TRUMP," something which I have gotten very used to, BUT WILL NOT ACCEPT! President DJT

Here Trump points out (correctly) that Judge Leon once again does not even mention standing:

The out of control Trump Hating, Washington, D.C. District Court Judge, who doesn't want to accept a $400 Million Dollar GIFT of one of the most beautiful Ballrooms anywhere in the World, desperately needed by the White House and its future Presidents (Due to time constraints, I will barely get to use it!), wants me to build the "underground" portion of the Ballroom, without the "above ground" portion, but the underground doesn't work, isn't necessary, and would indeed be useless, without the above ground sections. The underground portion is wedded to, and serves, the upper portion, including the Bomb Shelters, a State of the Art Hospital and Medical Facilities, Protective Partitioning, Top Secret Military Installations, Structures, and Equipment, Protective Missile Resistant Steel, Columns, Roofs, and Beams, Drone Proof Ceilings and Roofs, Military Grade Venting, and Bullet, Ballistic, and Blast Proof Glass. It's all tied together as one big, expensive, and very complex unit, which is vital for National Security and Military Operations of the United States of America! The Judge's decision, which doesn't even discuss the vital subject of STANDING, of which the plaintiff has none, severely jeopardizes the lives and welfare of the people who work, and will be working, at the White House — including all future Presidents of the United States, and their families. President DONALD J. TRUMP

During oral argument, Judge Leon apparently refused to discuss standing, and told the lawyer from DOJ to take up standing with the Court of Appeals.

This post goes more to the merits, and explains the underground construction cannot be separated from the aboveground construction. Standing comes in at the end.

The White House doesn't have a Ballroom (No Taxpayer Money!), which Presidents have desperately wanted and desired for over 150 years, but a Trump Hating, Washington, D.C. District Court Judge, a man who has gone out of his way to undermine National Security, and to make sure that this Great Gift to America gets delayed, or doesn't get built, is attempting to prevent future Presidents and World Leaders from having a safe and secure large scale Meeting Place, or Ballroom, one with Bomb Shelters, a State of the Art Hospital and Medical Facilities, Protective Partitioning, Top Secret Military Installations, Structures, and Equipment, Protective Missile Resistant Steel, Columns, Roofs, and Beams, Drone Proof Ceilings and Roofs, Military Grade Venting, and Bullet, Ballistic, and Blast Proof Glass —which all means that no future President, living in the White House without this Ballroom, can ever be Safe and Secure at Events, Future Inaugurations, or Global Summits. This Magnificent Space will allow them to carry out their vital duties as the Leader of our Nation. Furthermore, the Ballroom, which is being constructed on budget and ahead of schedule, is needed now. Almost all material necessary for its construction is being built and/or on its way to the site, ready for installation and erection. Much of it has already been paid for, costing Hundreds of Millions of Dollars. If somebody, especially one with no standing, had a complaint — Why wasn't it filed many months earlier, long before Construction was started? The Public Record was open for all to see. Everybody knew that it was planned, and going to be built. This highly political Judge, and his illegal overreach, is out of control, and costing our Nation greatly. This is a mockery to our Court System! The Ballroom is deeply important to our National Security, and no Judge can be allowed to stop this Historic and Militarily Imperative Project. Thank you for your attention to this matter! President DONALD J. TRUMP

Finally, Trump thinks that Judge Leon works for Chief Judge Boasberg, who was MANDAMUSED.

A Trump Hating Judge, for the first time in History, wants Congress to pay Hundreds of Millions of Dollars for a Glorious Ballroom, instead of accepting Donations from Great American Companies and Citizens. This is a first — In other words, he wants Tax Payers to pay for the Ballroom, instead of Donors and Patriots! The Ballroom is FREE to our Country, A GIFT, and vital for our National Security. This Judge, who works for another Judge who was just MANDAMUSED for the unfair and biased way he treats me, should be ashamed of himself! President DONALD J. TRUMP

Know who can't get mandamused? The President. Say what you will about Trump, but he gets procedure.

On April 27th, the Supreme Court will hear oral argument in Chatrie v. United States, on the Fourth Amendment implications of geofencing. I have already posted the amicus brief I wrote for the Court in the case, and I am writing a series of posts in anticipation of the argument. This is the second post in the series.

In this second post, I want to focus on how the Court hasn't handed down a case on the Fourth Amendment and new technology in a long time, and that it is now doing so in what amounts to  an advisory opinion.  These two things are related, I think. And for those of us interested in how Fourth Amendment law develops, they're related in an important way.

First, consider the timing.  Chatrie comes after a surprisingly long gap in Supreme Court attention to how the Fourth Amendment should apply to new technologies.  It has been 8 years since the Court's 2018 ruling in Carpenter v. United States on the Fourth Amendment implications of cell-site location information.  That's a relatively long gap. After City of Ontario v. Quon in 2010 on pagers, United States v. Jones in 2012 on GPS devices, Riley v. California in 2014 on searching cell phones incident to arrest, the Microsoft warrant case in 2018, and Carpenter that same year, it had become a staple of the Justices' speeches that Court was going to have to take a lot of cases on the Fourth Amendment and digital technologies in the future.

Instead, for eight years, we get bupkes.

Next, ponder the advisory-opinion aspect of the case.  The cert petition in the case asked the Court to take on two issues: Was the Fourth Amendment violated, and does the exclusionary rule apply?  In the proceedings below, the fifteen judges on the en banc Fourth Circuit were hopelessly divided on the Fourth Amendment issues—but only one of the fifteen Judges thought the exclusionary rule applied. Instead of taking both issues, the Supreme Court granted cert limited to the first issue.

Think about that. Even if the Court holds that Chatrie's Fourth Amendment rights were violated, it won't make any difference to Chatrie. The lower court has already held that there is no remedy, and that is a retrospective question unaffected by what the Supreme Court might rule on the merits in coming months.  Going forward, the Court gets to hand down what is in a practical sense an advisory opinion on how the Fourth Amendment applies to geofencing.  Many people care a great deal about what that practically-speaking-advisory-opinion will say, of course.  But the actual individual involved, Chatrie, won't get relief.

What is going on?  I think these two points are directly linked.

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