Harry Litman - The Umpire Was Taking Sides

Ten years ago, over a long February weekend, five Supreme Court justices quietly inaugurated a practice that would reshape American law and policy for the next decade. Last Saturday, the New York Times took us inside the room where it happened.

The Times published a package of leaked internal memos from the Supreme Court justices, sixteen pages of correspondence exchanged over five days in February 2016, that traced the birth of the so-called shadow docket. The memos had never been seen before. They show the justices writing to one another on formal letterhead, addressing each other by first name, signing off with their initials, debating in real time whether to do something the court had never done: freeze an entire federal regulatory program while the courts considered its legality.

Some commentators, mostly on the right, quickly moved to dismiss the exposé: nothing to see here, everyone already knew the court was using its emergency docket more aggressively. Move along.

They are wrong. It is a big story. Not primarily because of the memos themselves (remarkable as they are), but because of what they reveal: the founding moment of a procedural mechanism that has reshaped American law and policy over the last decade. And more than tracing the birth of the doctrine, the memos provide an origin story that is difficult to square with the ideal of a modest, impartial, and deliberative High Court.

They also shine a harsh light on Chief Justice John Roberts, who has long cultivated a public image as the neutral umpire of American law. The memos show him pushing the court hard to take aggressive action that was unprecedented, tenuous, and consequential.

https://harrylitman.substack.com/p/the-umpire-was-taking-sides