The Volokh Conspiracy

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Apparently Joan Biskupic Knows How Justice Gorsuch Addresses His Memo…

...for a particular draft opinion by CJ Roberts.


Joan Biskupic published another article about Justice Stevens's papers. She provides some background insight into Grutter. Justice Stevens talked Justice Souter out of writing a concurrence, and Justice Stevens prevailed upon Justice O'Connor to cite an article his ConLaw professor wrote in the Chicago Bar Journal. We did learn that O'Connor's 25-year clock emerged in her early draft opinion. But so far, at least, the Stevens papers are not nearly as revelatory as I hoped. (Mark Walsh wrote a fun story about Justice Stevens and the student prayer cases.)

However, buried in Biskupic's article was this passage:

After oral arguments and a preliminary vote in cases, the justices circulate notes and draft opinions as they hammer out the legal basis for a decision. Custom dictates that all nine justices, or the "conference," as they are collectively called, receive copies of all correspondence between justices. So on the current bench, for example, when Justice Neil Gorsuch sends a note asking for a change in an opinion being drafted by Roberts, he types at the bottom, "Copies to the Conference," and all others can see the state of play.

When I read that, I thought Woah! Certainly this information was not present in the Stevens papers. Gorsuch only joined the Court in 2017. So this practice is no more than six years old. But, Biskupic specifically wrote "the current bench." This reference would seem to reflect the Court after Justice Jackson's confirmation. So are we to believe that Biskupic is familiar with a memo that Justice Gorsuch wrote this term? And not just in any case. A case in which Chief Justice Roberts is drafting a majority opinion–and a case in which Justice Gorsuch presumably joined. Biskupic adds, Gorsuch included that note so that "all others can see the state of play."

At present, the Chief is the only member with zero majority opinions. And I think it very likely that the Chief has assigned himself the majority opinion in the affirmative action cases that were argued in October. And it is likely that Gorsuch joined that majority opinion. But what about the reference to "the state of play." Are some votes in motion? Does Gorsuch want the other Justices to know that things are in flux? The negative inference is that Gorsuch might otherwise want to keep this information between him and Roberts, but does not do so here.

Is Biskupic signaling that she has seen, or at least is aware of internal deliberations in Students for Fair Admission? The reference to a Gorsuch memo, on the "current bench," regarding a Roberts majority opinion, that Gorsuch joined, is far too specific to be coincidental. Biskupic could have made the same point about memos being circulated after conference by citing any case from the Stevens files–even from Gruter itself. I wonder if Biskupic wrote this story just to bury the chestnut about Gorsuch.

I don't know. Maybe I am paranoid. But I've been right before about "reporting" on leaks regarding Bostock and Dobbs. Let's see if someone publishes the leaked opinion.

Update: I am well aware that Justices have long used the phrase "Copies to the Conference" on memos. I've already seen several memos with this phrase in the Stevens papers, as well as the papers from Blackmun, Marshall, Powell, and others. What triggered my response was Biskupic's certainty that the members currently use this phrase. She could have said something like, "If the Court follows a longstanding tradition, Justice Gorsuch would type at the bottom of his memos, 'Copies to the Conference.'" But there was so much specificity here that I became suspicious.