The Volokh Conspiracy
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What Joan Biskupic "Learned" in Nine Black Robes?
The inside-information largely trickled to a halt after 2020.
There are two primary approaches to Supreme Court books. The first category is told from an outsider's perspective: how do scholars and other observers view the Court, the Justices, and their decisions. (I've written two such books.) The second category purports to bring an insider's perspective: the author cites unnamed sources who provide behind-the-scenes details about why the Court did what it did. The virtue of the former approach is that sources can be verified. The risk of the latter approach is that many of the sources cannot be verified. Still, an entire genre of behind-the-scenes stories have become quite popular: The Brethren, The Nine, Supreme Conflict, among others. We can now add to that list Joan Biskupic's latest book, Nine Black Robes.
I've read Biskupic's columns very closely over the years. There was some new content in Nine Black Robes, but not much. Indeed, much of the book is based on her reporting for CNN. And as I've noted on this blog many times, her ability to find leaks largely trickled to a halt after Justice Ginsburg's death in September 2020. Indeed, Biskupic cites interviews with "multiple Justices" after the 2019-2020 term. But she does not cite interviews with "multiple justices" in subsequent terms. That's not to say that RBG was Biskupic's source. But a potential fountain of leaks was sealed. It may be that one Justice provided some information, and then other Justices responded to provide their perspective. It is a common journalistic tactic: here's what I heard, what is your response? But in the absence of that first mover, there were no follow-ups. Or, maybe my blog posts worked, and the Chief Justice was able to get everyone to stop talking to her! I'm glad he didn't resign. In any event, Biskupic's ability to break news has weakened. Let's not forget that Politico scooped her, and everyone else, on the Dobbs leak.
My biggest frustration of the book was the attempt to force a narrative. Even the subtitle reveals the aim: "Inside the Supreme Court's Drive to the Right and Its Historic Consequence." At every juncture, Biskupic described the Court's "right wing" and "far-right bloc" in very negative terms. At the same time, the Court's liberal justices were described as principled defenders of the rule of law. And Biskupic's reporting on the abortion cases was in no sense neutral. She obviously favored the Court keeping Roe and Casey, and conveyed disappointment with Dobbs. Her choice of adjectives gives the game away. I had similar reactions when I've watched her CNN appearances over the years–especially during the S.B. 8 litigation.
Of course, there is nothing wrong with a writer having an opinion. I surely do. But expressing such strong opinions throughout the book undermines one's claim to be an objective journalist. At this point, I would place Biskupic in the same category as Linda Greenhouse: a former distinguished journalist who now writes informative opinion pieces. There is a big difference between reading Linda Greenhouse and Adam Liptak. I learn a lot from both writers, but read everything Greenhouse writes through a political prism. And now the same for Biskupic.
I doubt my criticism will matter much to Biskupic. She has reached the pinnacle of the profession with her perch at CNN. But there is an undeniable cost to her approach. To the extent conservative "sources" were willing to talk to Biskupic before, they did so on the belief that she could be a quasi-neutral player. But Biskupic has blown up any pretense of neutrality. She is, in my view, no different than Linda Greenhouse or Jeffrey Toobin. If you read her book with that perspective, things will be much simpler.
Rather than writing a full review of the book, I thought it would be useful to highlight many of the inside bits of information Biskupic reports on. She has a tell. Whenever she uses the phrase "I learned," there is a signal that she got the information from an unnamed source. I'll relay them in somewhat chronological order.
In the acknowledgments, Biskupic thanks, indirectly at least, her sources.
Since I began writing about the Supreme Court, I've had a quiet mental refrain for my audiences: This is your Supreme Court. I've tried to focus on the consequences of decisions in American life. Through the years, another line has crept into my thinking as I've labored to understand what's really happening inside the chambers and been met with the Court's institutional resistance toward the press and public. That attitude is, as I was long ago admonished, If we had wanted you to know that, we would have told you. So, I am especially grateful to the individual justices and other insiders who privately inform my understanding of the Court's workings. I am also indebted to a stable of former law clerks and regular Supreme Court advocates who have provided trusted, confidential guidance over the years.
One of the downsides of writing this book is that your sources will invariably dry up. Former law clerks–especially for conservative Justices–will not see Biskupic as a reliable interlocutor. And none of the conservative Justices will talk to her. There are far more reliable members of the press to converse with.
The book begins in earnest with President Trump's nomination of Neil Gorsuch in 2017. You may recall that President Trump attacked the federal judge in Seattle who enjoined the travel ban. Gorsuch told Senator Blumenthal that Trump's comments were "demoralizing" and "disheartening." Biskupic offers some insights, which have previously been reported:
I learned later that Trump never contacted Gorsuch directly, although the nominee of course heard through intermediaries about the criticism. Gorsuch was not going to walk back remarks that he believed reflected judicial independence. Trump wanted constant loyalty and genuflection. It was a rare Trump appointee or executive branch associate who managed to enter his world and avoid some personal compromise. Trump could test even the most hard-bitten veterans of politics and destroy reputations.
Biskupic also provides some insight into Gorsuch's investiture at the Court. Apparently Gorsuch wanted to speak, but the Chief said no. I believe it.
As for the public courtroom investiture, these were traditionally brief, tightly scripted affairs, highlighted by use of a black horsehair chair that had belonged to the great chief justice John Marshall and which was positioned at the front of the courtroom. After a new justice was escorted from the Marshall chair to the bench, the chief justice administered the oath, the new justice took his seat, and the ceremony ended. But Gorsuch wanted to offer formal remarks, words of appreciation, to the spectators, and as the event was being planned made his desire known. Roberts, who would preside, refused to entertain any break in the tradition, and the courtroom event remained brief, about five minutes.FN 59
FN59: Author learned of the incident in 2017 and confirmed the details in interviews (2020–2022) with Supreme Court sources who had firsthand knowledge.
Biskupic also includes a fun anecdote about Maureen Scalia:
I learned from a source close to Maureen Scalia that Trump asked her if it was true that she had one of his signs in her yard. She answered, "And a bumper sticker, too." Trump followed up a few weeks later to make sure she had received her tickets to inaugural events. He then invited Maureen Scalia to the unveiling of the Gorsuch nomination and to subsequent judicial investitures at the White House.
Next, Biskupic writes about an "understanding" because Chief Justice Roberts and Justice Kennedy concerning Masterpiece Cakeshop and Pavan v. Smith. The Court granted Masterpiece and GVR'd Pavan on the same day: June 26, 2017. I wrote about that story here. Concerning private pacts, Biskupic does a flashback to NFIB v. Sebelius:
I have discovered over the decades that in many instances, law clerks know about a pact struck between justices. In other situations, only the two justices involved truly know. Sometimes, various chambers have dueling accounts of what happened. And here is the most consistent obstacle to ferreting out a questionable vote or a switch at a place of such secrecy: even individual justices are not quite sure why a colleague voted the way he or she did. When I learned that Roberts had switched two different votes in the 2012 controversy over the Affordable Care Act (on the individual mandate and on the Medicaid expansion), there were almost as many inside explanations as justices.
I don't think we'll ever know for sure what happened with the Obamacare cases.
Biskupic repeats a lot of her former reporting on the census case from 2019. We learn that Kagan tried to nudge the Chief to rule that Secretary Ross had provided the lower court with contrived rationales.
Roberts said he would write the opinion for the majority to reverse Furman, and Ginsburg, senior among the liberal dissenters, asked Breyer to write for their foursome on the left. But positions would shift, influenced especially by Kagan, as the weeks unfolded. She believed the evidence collected by Furman flatly belied the claim related to voting rights enforcement. Even though Roberts was siding with Secretary Ross, I learned that Kagan sensed an opening to try to convince the chief justice of the risk to the Court's integrity if it accepted the obviously contrived grounds for the census question. Roberts had not blanched at the Trump legal positions during the administration's first two years, but he was beginning to show concern that the administration was falling short and the Court's reputation was increasingly on the line in how it ruled in Trump cases.
Ultimately, Roberts reached that conclusion, even before he saw the Hofeller documents. Remember those?
But by this point, however, I learned that Roberts even without the new Hofeller materials had in fact come to believe that Ross's rationale for the citizenship question had been contrived, and that if the justices accepted it, they would appear to have been duped. His opinion, scheduled to be distributed to fellow justices by the first week in June, had already made a sharp turn from where he had begun immediately after oral arguments. He was still ready to give the administration officials great latitude for policy choices, but he had been persuaded to draw a line at a falsehood.. . . Roberts remained conflicted until the end, however. And his opinion showed it.
Biskupic also relays the letter that Justice Kavanaugh sent to Judge Furman.
Kavanaugh had signed on to Thomas's dissent, but indicative of how he was always conscious of how he might be perceived, Kavanaugh sent Furman a private note saying he did not intend to personally disrespect him. The correspondence—revealed to me by a Supreme Court source—suggested some duplicity and showed the lengths to which Kavanaugh would go to appear conciliatory. He joined an opinion challenging Furman's integrity but then wrote the judge a note that pled the opposite. The episode certainly added to an understanding of how Kavanaugh operated. But it may also have demonstrated something of the larger personal and political balancing justices undertake.
"Duplicity"! That is a harsh word. And, I'll note, Biskupic did not use that word in her CNN summary of the book chapter. See what I mean about forcing a narrative? There is nothing duplicitous about what Kavanaugh did, as I noted here. He is a nice guy. But Biskupic portrays him, and the other conservatives, in the least flattering light.
Biskupic offers some nebulous claims about how colleagues were frustrated with the Chief's leadership:
Roberts faced tensions within the Court, but the challenges provoked by Trump and the polarization in Washington during his presidency were of another order of magnitude. Some of Roberts's colleagues were suspicious of his maneuverings on cases and what they saw as an exalted sense of his authority as chief justice. He exerted a strong hand on internal operations at the Court building, and in various public communications separated himself from the eight associate justices. His team wanted public information materials, printed and on the Court's website, to separately enumerate chief justices (Roberts was only the seventeenth in U.S. history) and the scores of associate justices. When Brett Kavanaugh was confirmed, Roberts noted he was the "102nd associate justice," as opposed to the 114th justice. Roberts's predecessor as chief justice, William Rehnquist, had not insisted on such separation, welcoming Ruth Bader Ginsburg in 1993, for example, as the 107th justice.
When Kavanaugh was confirmed, a reporter asked me about this enumeration. I didn't put much weight on it at the time, but it apparently bothered some of the other Justices.
Biskupic focuses a lot on Bostock. Biskupic explains that she learned that Roberts had "hinted" that he was open to ruling for the Plaintiffs.
During oral arguments in Obergefell, Roberts had asked the lawyer arguing against same-sex marriage, "Counsel, I'm not sure it's necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?" At the time, in 2015, Roberts's question had been tangential to the constitutional inquiry regarding same-sex marriage; but nearly five years later, it got to the core of the Title VII dispute. And while it was not known outside the private Court chambers as the justices heard the new case, I learned that Roberts had hinted that he was open to a broader interpretation of Title VII—a piece of information that would have been picked up by the law clerks' subtle network and discreetly passed on to their respective justices. He might vote to extend protections based on sex to gay and transgender workers.4
FN4: Author interviews with multiple justices and other Supreme Court sources for chronology of internal debate during 2019–2020 session.
Biskupic also recounts the leaks following the conference vote in Bostock.
The justices' 6–3 vote was taken privately, as usual without law clerks or other administrative staff in the room. Their law clerks would learn the vote soon enough, as they helped research and draft decisions, but they took a vow of confidentiality, and it was rare that outsiders ever got word of the outcome before a case was announced. So it was stunning that hints of the 6–3 vote in the LGBTQ cases began to leak relatively early to some journalists. It was apparent that some right-wing insiders were unhappy with the path the cases were taking and hoped outside pressure might change things. A Wall Street Journal editorial on November 21 shined a dark light on the possible direction of the dispute. It was headlined "The Supreme Court's Textualism Test: Kagan Tries to Lure Gorsuch and Roberts Off the Scalia Method."
After I blogged that the Wall Street Journal had a leak, I received a call assuring me that I was wrong. I was right.
Gorsuch apparently shared his first draft of Bostock in February 2020. And, we learn, that Roberts "soon followed." What we do not know is whether Roberts joined Gorsuch at the conference. In other words, who assigned the majority opinion to Gorsuch: Ginsburg or Roberts? Biskupic does not tell.
But Gorsuch disagreed. And in early February 2020, I learned, he privately shared the first draft of his opinion with his colleagues. He wrote that employers violated Title VII if they relied in any way on an individual employee's sex when deciding whether to fire him or keep him on. If an employer discriminated against someone on the basis of sexual orientation, the employer necessarily was treating the person worse based in part on that individual's sex. Within a few days, the four liberal justices individually told Gorsuch they were with him. Roberts soon followed. The quick endorsement demonstrated that the majority vote from October was holding to produce a decision covering gay and transgender workers.15
In any event, Alito signaled that he would write a dissent right away.
When one justice joins an opinion, or offers a suggested change, Court protocol dictates that he or she notify all the other justices. So the dissenting justices knew that Gorsuch's majority was still intact. His usual allies were frustrated. I learned that on the day that Alito received a copy of Gorsuch's first draft, delivered electronically and also on paper by a marshal's aide to his chamber in pre-pandemic tradition, Alito sent a private memo to his colleagues saying that he would be writing a dissenting opinion.
I was confused why Biskupic was so explicit in noting that Alito received an electronic copy, and a paper copy. Is she hinting at how the outcome leaked out?
Next, we jump to June Medical. Biskupic repeats her earlier reporting that Kavanaugh tried to broker a compromise.
Kavanaugh initially sought a possible off-ramp, before supporting Louisiana's law and voting with the dissenters. I learned that he sent a series of private memos to his colleagues questioning whether they had sufficient facts about how the physician requirement affected clinic doctors. He proposed that they return the case for more lower-court findings and postpone a ruling on the merits of the law. Kavanaugh asserted that it was not clear that physicians would be unable to obtain credentials and that abortion clinics would shutter—a point that conflicted with the trial judge's findings after the six-day hearing. In the short term, Kavanaugh wanted to avoid the difficult abortion rights issue; in the long term, he was proposing a more demanding approach for any challenge to a restriction diminishing women's access to abortion.29 Kavanaugh might have thought that Roberts in particular would have been open to shelving the issue in an election year. But Roberts held fast to what must have been a difficult vote.
Biskupic also has an extensive discussion of the tax return cases:
When the justices voted on the new pair of cases after oral arguments, such unanimity and consensus eluded them. In their private telephonic conference, the Trump v. Vance case produced a 5–4 split, I later learned, to affirm the lower-court judgment against Trump. Separately, on the House dispute known as Trump v. Mazars, the justices fractured in their legal rationales, although a solid six at the start wanted to throw out the D.C. Circuit decision that had afforded Congress expansive power to issue subpoenas for Trump's financial documents. Those early votes were not publicly revealed. Roberts said that he would write the opinions for both cases and proceeded to try to produce greater common ground. They were of utmost importance, and it was predictable that Roberts would want to hold on to them. More than Chief Justice William Rehnquist, Roberts kept the prime cases for himself. As he began trying to bring together as many votes as possible, he was in regular telephone contact with his colleagues. Over the course of two months, he coaxed and compromised for two 7–2 opinions. Only Thomas and Alito declined to sign on to the majority judgment in each case.
Of course, the Gorsuch/Kavanaugh position in Vance was far closer to the dissenters. At the time, I wrote on NRO:
On the final day of the Supreme Court's term, Gorsuch and Kavanaugh voted against Trump in the New York tax-return case. The vote was 7–2. Well, sort of. Gorsuch and Kavanaugh did not join Chief Justice John Roberts's majority opinion, which held that the president was not entitled to special protections against the subpoena. Nor did they join the dissents of Justices Clarence Thomas and Samuel Alito, both of whom concluded that the subpoenas were unconstitutional. Instead, Kavanaugh and Gorsuch wrote a separate concurrence, which walked a narrow tightrope between the Court's two poles. On paper at least, they narrowly ruled against Trump. They likely could not be seen as voting for the president who appointed them. But their opinion laid the foundation to broadly expand the power of the presidency in the future.
Biskupic also recounts Justice Kavanaugh's request for supplemental filings in the tax return cases. Roberts went along with it.
As the justices dealt with each other that April through a series of calls and memos, Kavanaugh persuaded them to ask lawyers for the House and for Trump for supplemental filings on whether the doctrine applied or whether any other grounds would prevent the Court from deciding the case. A few justices believed the request in vain because the dispute involved Trump as a private individual. They also thought it was too close to the scheduled arguments. But Roberts agreed with Kavanaugh that they should at least air the issue.FN30
FN30: Author interviews with Supreme Court sources who had firsthand knowledge of the internal discussions on the Trump cases in 2019 and 2020.
We also get a grouse that seems like it came from Justice Ginsburg about the Chief's unrealistic desire to finish all of the cases by June 2020. Remember the Court spilled its term over till July.
Ginsburg was known for quickly producing opinions and for pushing others to move faster on their assignments. It was a bit of an inside joke that she was always asking for updates on when exactly drafts of opinions she had assigned would be sent around. This time, however, I learned that she thought that Roberts was setting unrealistic deadlines. Usually, the justices could finish all the cases for an annual session by late June. But between the pandemic and the late-argued May cases, decisions were running behind. Roberts eased up on the deadlines, and the justices went into the second week of July.
So far, I have relayed all of the "learned" knowledge that preceded Ginsburg's death. There is not much that follows RBG's passing.
We get a bit on #MaskGate. Apparently, the Chief was "surprised" that Sotomayor and Gorsuch had issued a statement–presumably without his approval. So the Chief had to clean things up.
Gorsuch declined to respond to later news media queries about why he shunned the mask, and numerous commentators chalked it up to ideological views. That such sentiment could imperil the health of Gorsuch's colleagues did not go unremarked upon. National Public Radio's Nina Totenberg reported that "according to Court sources, Sotomayor did not feel safe in close proximity to people who were unmasked," and Totenberg added that "Roberts, understanding that, in some form asked the other justices to mask up." After Totenberg's report, Gorsuch and Sotomayor issued an unusual joint statement: "Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends." But that was strange wording: Totenberg had not reported that Sotomayor had asked Gorsuch to wear a mask; she had reported that Roberts had. I later learned that the chief justice was surprised by Sotomayor and Gorsuch's joint public statement. Their move suddenly put attention on him and his wishes. A few hours later, the chief justice issued his own statement, itself an extraordinarily rare occurrence. Roberts said simply that he had not asked any justice to wear a mask and that he would say nothing more on the matter.
Biskupic has some reporting on the S.B. 8 cases. Apparently, the liberal Justices thought Justices Kavanaugh and Barrett would side with the abortion clinic. I sure thought that! But ultimately, those two Justices voted with the conservatives.
Many journalists who closely watched the Court thought that the signals from Kavanaugh and Barrett were clear and cast their news stories that way. More important, some of the justices, I later learned, believed that these two crucial justices would side with Whole Woman's Health. Among the justices who had previously dissented—those who believed the "heartbeat" bill blatantly unconstitutional—there was a sense that this would be a turning point in the case. But their optimism was short-lived, and when the votes were cast in private, they realized they had been misled by what they had heard in public. Kavanaugh's and Barrett's comments during oral arguments belied their true sentiment against the abortion clinics. FN14
FN 14: Author interviews with Supreme Court sources with firsthand knowledge of internal debate over Texas's Senate Bill 8 (SB 8);
I've long wondered whether writings from me, Ed Whelan, and others between oral argument and the conference helped shift votes. We may never know.
Finally, we get to Dobbs. Biskupic relays that the Wall Street Journal had connections to the conservative Justices through "mutual friends":
Five justices on the far-right wing had the majority. But it was a close vote, effectively 5–1–3, with Roberts in the middle, voting to uphold a Mississippi fifteen-week abortion ban but stopping short of reversing the 1973 case of Roe v. Wade. And with the fractious subject of abortion, there was inevitably a question of whether that (still private) five-justice majority would hold. Less than a week earlier, on April 26, a Wall Street Journal editorial had speculated that there was a majority to overturn Roe based on the December oral arguments, but the paper warned of a "ferocious lobbying campaign" and the possibility that Roberts might lure one of the conservatives in the majority away for a compromise decision. All internal debate was closely held at this point, and what I had been able to learn from my sources indicated that Roberts had not made progress with a compromise position that would preserve some right to abortion. But the Wall Street Journal editorial could not be dismissed. Its writers, who appeared to favor the reversal of Roe, were connected through mutual friends to the conservative justices. In the past, such as in the Bostock LGBTQ case, the Journal had obtained early, reliable information. Their editorial could not help but provoke questions among close Court watchers about whether Roberts was indeed making headway that the Wall Street Journal hoped to stanch.2
For what it's worth, I accurately inferred that the Wall Street Journal had a leak in Dobbs. And no, I do not have inside sources.
Biskupic relays that there were five votes to overrule Roe at conference. Yet, she "contemplated" that the votes would change. Finally, the Chief tried to lobby, even after the leak, but was unsuccessful.
After the arguments, the five justices on the right were ready to abolish Roe. I had learned of the vote from Court sources, but I continued to contemplate the possibility of switched votes and shifting views, as had happened in past abortion cases. The evidence, however, bore out how solid those five votes were. The leaked Alito draft was produced in about two months, relatively quickly for such a substantial case. And the justices who joined him before the ninety-eight-page document became public never wavered after the leak; perhaps they never wavered because of the disclosure. The Politico leak published in May cemented not only the vote count but also the acceptance of Alito's unsparing denigration of the justices who wrote Roe and Casey and his selective use of history. Chief Justice Roberts, however, persisted. I learned that he continued for weeks to privately lobby fellow conservatives to save some element of a constitutional right to abortion.
And that's it. If you follow the Court closely, you can just read this post to get the highlights.