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The Supreme Court’s emergency order blocking former President Barack Obama’s signature clean energy initiative in 2016 came after a series of leaked internal memos among the justices that revealed a fight along ideological lines about whether to intervene.
The rare glimpse at the high court’s internal memos, obtained by the New York Times, showed Chief Justice John Roberts, an appointee of former President George W. Bush, urging the Supreme Court to block Obama’s effort, while liberal justices pushed back.
Roberts and the court’s conservatives were concerned not just with Obama’s policy itself, but with the possibility that the Clean Power Plan could reshape the power sector before the justices could fully review whether it was lawful, the newly revealed memos show.
“Absent a stay, the Clean Power Plan will cause (and is causing) substantial and irreversible reordering of the domestic power sector before this court has an opportunity to review its legality,” Roberts wrote in one of the memos published by the New York Times on Friday.
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Fox News Digital reached out to the Supreme Court’s communications team Monday for comment on the leaks.
The push from Roberts came as the justices were considering what was viewed at the time as an unusual request on the emergency docket, sometimes called a “shadow docket,” from red states and outside groups to halt the Obama-era regulation, which aimed to cut carbon emissions over the next 25 years, before lower courts had fully weighed in, a step that the liberal justices warned would break from longstanding practice.
The emergency docket allows litigants to bypass typical court proceedings and seek immediate relief from the Supreme Court if lower courts block them through restraining orders or preliminary injunctions.
The Clean Power Plan would have involved the Obama Environmental Protection Agency regulating coal, oil and gas plants under the Clean Air Act. Roberts wrote that without the Supreme Court stepping in, “both the states and private industry will suffer irreparable harm from a rule that is — in my view — highly unlikely to survive.”
In another memo, Justice Elena Kagan, an Obama appointee, disagreed, saying “the unique nature of the relief sought in these applications gives me real pause.”
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Justice Samuel Alito, an appointee of former President George W. Bush, circulated a memo the same day as Kagan in which he agreed with Roberts.
“A failure to stay this rule threatens to render our ability to provide meaningful judicial review — and by extension, our institutional legitimacy — a nullity,” Alito wrote.
Within a matter of days, the justices temporarily blocked Obama’s Clean Power Plan 5-4 along ideological lines, effectively dealing it a death blow because Democrats would lose the White House later that year. The New York Times noted that the Obama White House dismissed the ruling at the time as a small hurdle but that “behind closed doors, officials were astonished that the court had intervened so quickly.”
The back-and-forth in the memos during the short period of time, from the end of January 2016 to Feb. 9, when the brief decision was issued, showed how fast the justices moved to weigh in on a major presidential action.
Jonathan Turley, law professor at George Washington University, wrote in an op-ed that the anonymous leak of the memos to the New York Times, the second leak of confidential material after the Dobbs opinion leak in 2022, was “clearly designed to wound some of its members.”
“For an institution that prides itself on its confidentiality and insularity, the court is looking increasingly porous and partisan in these leaks,” Turley wrote.
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The New York Times’ report highlighted that legal experts have long viewed the Clean Power Plan decision as one of the first examples of the Supreme Court using the emergency docket in a way that limits executive power over national policy.
Justice Ketanji Brown Jackson, an appointee of former President Joe Biden, has been among the most vocal dissenters in emergency cases during President Donald Trump’s second term as the president frequently benefits from the fast-paced docket. Jackson is sometimes joined by her two liberal colleagues, Kagan and Justice Sonia Sotomayor, in her dissents, and emergency cases have often split 6-3 in favor of Trump.
Last week, Jackson aired her grievances in a different forum, blasting emergency docket decisions during a Yale Law School speech as rushed, “scratch-paper musings” that undermine the high court’s purpose.
“Given the real world facts that a stay request asks the court to consider, the court’s stay decisions can, at times, come across utterly irrational,” Jackson said. “We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently greenlight harmful acts.”
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Legal experts have attributed the heightened activity on the emergency docket to a rise in presidents attempting to shape national policy through through executive orders.
“[An increase in emergency motions] coincides with the rise of executive orders and other forms of unilateral executive action really as the primary form of lawmaking in our country with the disappearance of Congress, and that has posed enormous challenges for the court,” attorney Kannon Shanmugam said during a Federalist Society panel last fall.
Fox News Digital reached out to Obama’s office for comment.
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