The Volokh Conspiracy

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Tentative Thoughts on the Prematurely Posted Moyle Opinion


I've now had a chance to read the draft opinion in Moyle v. United States. The document is labeled 1.0, and is dated May 23, 2024. A lot can change over a month. But, like with the Dobbs leak two years ago, it is safe to presume that not many changes will be made. Here are my tentative thoughts.

First, Moyle was argued on April 24. That would suggest it took the Court about a month to put together a DIG and several separate writings. This timing suggests that the Court does indeed hold big cases till the end of the term, and does not always release them right away. It has happened that certain DIGs are held to the last day of the term. But why? Other DIGs are issued shortly after a case is argued.

Second, whatever security precautions were put in place after Dobbs failed. Bloomberg has not indicated how long the document was online for, but it was there long enough for it to be downloaded. Bloomberg likely was not the only one to see it. Moreover, the document posted was not final. It still had the version number (1.0) and date (5/23/24) on it. Somehow, someone in the Supreme Court managed to inadvertently post a draft opinion that was not complete. This was not like someone pushing the wrong button. Several steps in the process were bypassed. Will the Chief Justice assign the Marshal to investigate? I will withhold any calls for Roberts's resignation until more facts are developed.

Third, the effect of the dismissal may be temporary. Currently pending before the Court is the SG's cert petition on a similar case from Texas. The brief in opposition to cert is due on July 22. This case will almost certainly be distributed for the long conference. I have to imagine there are four votes for cert, but not the four you might expect. Justices Alito, Thomas, and Gorsuch want to resolve this case yesterday. And Justice Jackson lambasted her progressive colleagues for DIGing it. So we should get a grant in October, with oral argument in December or January. But therein lies a dilemma. If Trump wins, he will almost certainly rescind the Biden-era "guidance" document. And the Court can then DIG that petition, like the Grimm case. How's that for Roberts bipartisanship–DIG two petitions on the same issue from two administrations. And that shift will trigger a new round of litigation that Trump's rescission is not valid because {insert reasons}. Idaho is in the Ninth Circuit, so you know how that will go. As a result the Court will never actually decide the statutory issue. Justice Jackson is angry, with good reason! Her time horizon is much longer than that of Justices Sotomayor and Kagan. I see this decision as a similar punt to the cert grant of the SG's petition in Skrmetti. If Trump wins, the Roberts Court can, once again, avoid a contentious issue.

Fourth, Justice Kavanaugh's concurrence in Labrador v. Poe is looking quite stale. In that opinion, which I praised, Kavanaugh extolled the virtue of granting cert before judgment as a way to handle the shadow docket. But here, Justice Barrett regrets the decision to grant cert before judgment, and lays down what I think will be guidance to not grant it in the future. She focuses on irreparable harm, and indeed is quite stingy in defining it. I know I beat up on Justice Kavanaugh quite a bit, but I do feel bad for him. Just when he thought he had things figured out, Justice Barrett pulls the rug from underneath him.

I will have much more to say about the substance of the opinion in another post. And, to close with a mohel joke, never take a front row seat a bris.