{"id":149242,"date":"2026-04-20T14:51:24","date_gmt":"2026-04-20T22:51:24","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/04\/20\/the-shadow-docket-memos-are-damning-so-naturally-the-right-is-talking-about-the-leak\/"},"modified":"2026-04-20T14:51:24","modified_gmt":"2026-04-20T22:51:24","slug":"the-shadow-docket-memos-are-damning-so-naturally-the-right-is-talking-about-the-leak","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/04\/20\/the-shadow-docket-memos-are-damning-so-naturally-the-right-is-talking-about-the-leak\/","title":{"rendered":"The Shadow Docket Memos Are Damning. So Naturally, The Right Is Talking About The Leak."},"content":{"rendered":"

The New York Times dropped a bombshell on Saturday. Reporters Jodi Kantor and Adam Liptak obtained 16 pages of leaked internal memos<\/a> from six Supreme Court justices, showing \u2014 in their own words, (mostly) on their own letterhead \u2014 exactly how Chief Justice John Roberts led the Court to invent what we now call the shadow docket. The memos, exchanged over five days in February 2016 as the justices scrambled to kneecap President Obama\u2019s Clean Power Plan, are a remarkable window into how this institution actually works. Or rather, how sloppily it works when it wants to reach a predetermined result.<\/p>\n

The documents are damning. Georgetown law professor and shadow docket chronicler Steve Vladeck \u2014 who wrote just two months ago<\/a> that we\u2019d \u201cnever know (at least, until our grandkids can read the justices\u2019 internal papers)\u201d how the shadow docket was born \u2014 put it plainly in his newsletter<\/a>: Roberts applied the wrong legal standard, ignored the other side of the equities entirely, cited a BBC interview and a blog post as his \u201cfacts,\u201d and then steamrolled his colleagues when Justices Breyer and Kagan proposed reasonable compromises. The deliberation was, in Vladeck\u2019s words, \u201cutterly impoverished.\u201d<\/p>\n

And the conservative legal commentariat\u2019s response to all of this? Never mind the substance. WHO LEAKED IT?<\/p>\n

Of course. OF COURSE.<\/p>\n

We have been here before.<\/p>\n

We watched this entire movie play out with the Dobbs<\/em> leak. When Politico published Samuel Alito\u2019s draft opinion overturning Roe v. Wade<\/em> in May 2022, the reaction from the legal establishment was, as we noted at the time<\/a>, to be \u201cway more offended by the leak than by the content.\u201d And as my colleague Joe Patrice observed immediately<\/a>, the hand-wringing about the \u201cgravest, most unforgivable sin\u201d was a way for the legal establishment to avoid talking about what the opinion actually said \u2014 including Alito\u2019s gleeful citation of a 17th-century jurist who also sentenced women to death for witchcraft. (But sure, it\u2019s the leak<\/em> that\u2019s the legitimacy problem<\/a>.)<\/p>\n

Roberts launched a full investigation into the Dobbs<\/em> leak. Clerk phone records were seized. The U.S. Marshal\u2019s office ran the probe, blessed by an outside evaluator, Michael Chertoff, who happened to be Sam Alito\u2019s former colleague on the Third Circuit<\/a>, and who turned out to have a multi-year, seven-figure contract with the Court that nobody knew about at the time. The investigation found\u2026 nothing. Or said it found nothing. The nine most obvious stones were never turned over, because the Court\u2019s \u201cinvestigation\u201d explicitly did not cover the justices themselves<\/a>.<\/p>\n

Meanwhile, the entire time, the overwhelming logic of the situation<\/a> pointed to the leak coming from the conservative side. The motive was obvious: Joan Biskupic\u2019s book Nine Black Robes<\/em> later confirmed that the leak \u201ccalcified Alito\u2019s draft as the opinion of the Court, taking momentum away from John Roberts\u2019s death by a thousand cuts approach.\u201d The leak froze the votes. It eliminated the possibility of compromise. It gave Alito\u2019s scorched-earth opinion the permanence he wanted. In other words, the Dobbs<\/em> leak was, functionally, a conservative operation \u2014 and the ensuing hysteria about finding the liberal leaker was a way to muddy the waters<\/a> and prevent anyone from noticing that the most logical beneficiary was the guy who also allegedly leaked the Hobby Lobby<\/em> outcome to a network of right-wing Christian activists<\/a> years earlier.<\/p>\n

The NYT\u2019s shadow docket documents reveal something straightforwardly important: the birth of the modern emergency docket was sloppier, more ideologically driven, and less legally rigorous than the Court\u2019s defenders have ever admitted. This isn\u2019t speculation anymore\u2026 we\u2019ve got it in the justices\u2019 own words.<\/p>\n

Roberts argued for blocking Obama\u2019s Clean Power Plan using the wrong legal standard \u2014 he cited cases about staying lower court rulings pending appeal, but what was actually requested was staying executive agency action pending all judicial review, something the Court had never done before. He never acknowledged the novelty of what he was proposing. He cited a BBC interview and an EPA blog post \u2014 not exactly the vetted record one might hope for \u2014 as his factual basis. He reframed \u201cirreparable harm\u201d from its legal meaning into vague claims about \u201csubstantial and irreversible reordering of the domestic power sector,\u201d while completely ignoring the irreparable harm the government and the environment<\/em> would suffer from the Court\u2019s intervention.<\/p>\n

Justices Breyer and Kagan both proposed workable compromises. Roberts brushed them aside. Kennedy, apparently having decided that a stay was inevitable anyway, provided the fifth vote. And the rest is history \u2014 an unsigned, one-paragraph order issued on a February night. As Elbert Lin, West Virginia\u2019s solicitor general at the time, told the Times: \u201cThis had never been done.\u201d<\/p>\n

The memos also demolish the conservative talking point that internal deliberations over emergency applications are rigorous and substantive. They aren\u2019t. This was five days of brief memos, which included a weekend, with no in-person debate and no serious grappling with the novelty of what was being proposed. The memos are written in \u201cthe distinctive voice of the Justices,\u201d as Josh Blackman, a constitutional law professor at South Texas College of Law Houston and Volokh Conspiracy contributor, noted<\/a>, which is the one thing he got right before going off the rails. What they reveal is not rigor. It\u2019s a small club of powerful people moving fast and breaking things.<\/p>\n

Did the right-wing legal commentariat engage with any of this? Ha.<\/p>\n

Instead, Jonathan Adler, a constitutional law professor at Case Western Reserve University School of Law and a Volokh Conspiracy contributor, published a post raising the possibility<\/a> that the documents came from Sotomayor\u2019s chambers, based on the fact that her memo in the tranche lacks official letterhead, has no signature, and has an apparently wrong date. He emphasized (\u201cI stress the if\u201d) the if, but the downstream commentariat apparently does not know what \u201cif\u201d means.<\/p>\n

Blackman then followed up with his own posts suggesting investigators could reconstruct who had access to a \u201cnon-circulated\u201d draft<\/a>, and separately speculating about whether more leaks are coming<\/a>. Mollie Hemingway tweeted: \u201cAnother major Supreme Court leak to a left-wing media outlet to support a left-wing narrative. Interesting.\u201d RedState declared it part of a pattern of liberals \u201cdestroying the Court.\u201d Twitchy aggregated a parade of social media posts flatly stating \u201cIt was Sotomayor.\u201d A justice who was not even at the Court in 2016, Ketanji Brown Jackson, was also somehow fingered by posters whose racism apparently means they\u2019re incapable of checking a calendar.<\/p>\n

There\u2019s just one problem. Adler\u2019s \u201cclue\u201d isn\u2019t much of a clue.<\/p>\n

Vladeck pointed out on Bluesky<\/a> that Sotomayor\u2019s memo was almost certainly filed on Saturday, February 6 when she, her clerks, and any staff support would have been out of the office. A memo dashed off on a Saturday without secretarial support would naturally lack letterhead and a formal signature. That\u2019s not a smoking gun. That\u2019s a weekend. Adler responded directly: \u201cI did not say clerk,\u201d he noted his post pointed at chambers<\/em> broadly, not a specific clerk. He then said, \u201cI think there are a range of possibilities, and the clue may not be much of a clue.\u201d <\/p>\n

But before we move on, let\u2019s give the terse \u201cI did not say clerk,\u201d a deeper look. When Vladeck pushed back on the Sotomayor-chambers theory by pointing out that no clerks or staff would have been around on a Saturday to format the memo properly, Adler didn\u2019t say \u201cfair point, that explains it.\u201d He said he never blamed a clerk<\/em>. Which leaves exactly one person in Sotomayor\u2019s chambers who would unquestionably have been working on a Saturday while a major emergency application was live: Justice Sotomayor herself. Adler appears to be suggesting, without quite having the nerve to say it plainly, that a sitting Justice of the United States Supreme Court personally leaked decade-old internal deliberations to the New York Times.<\/p>\n

It\u2019s also, notably, a considerably harder claim to sustain. Vladeck went on to offer what he thinks is the actually interesting clue: the Times doesn\u2019t have the Thomas, Scalia, or Ginsburg memos, suggesting the leaker didn\u2019t have the full case file. That\u2019s more consistent with someone who had access to a subset<\/em> of circulated memos \u2014 which could describe a whole host of folks. The absence of a full file is not the profile of someone who raided a complete chambers archive, like a Supreme Court justice. It\u2019s the profile of someone who had whatever landed in their specific inbox a decade ago (or any time since then) and held onto it.<\/p>\n

Here\u2019s the thing the right-wing commentariat does not want to discuss: the shadow docket has done more damage to the credibility of the Supreme Court than any leak ever could.<\/p>\n

This is not a new observation. Justice Jackson said it herself<\/a> at Yale Law School recently: when she clerked in 1999, the emergency docket was used \u201calmost exclusively for death row inmates.\u201d Today the Court \u201croutinely opts to enter the fray, and it fails to acknowledge the harms that follow when the Supreme Court of the United States consistently and casually divests the lower courts of their equitable authority.\u201d Unsigned, unexplained orders that reshape national policy \u2014 on immigration, on the environment, on federal workforce policy \u2014 issued after a few days of memo-trading. With no oral argument. Often with no reasoning at all.<\/p>\n

The memos show that this was always the plan. Roberts, in 2016, decided that protecting conservative policy goals from an Obama regulation was worth blowing up the Court\u2019s procedures. He did it with sloppy reasoning, cherry-picked facts, and a complete indifference to the harms on the other side of the ledger. *That* is the scandal. That has always been the scandal. The leak is just how we found out about it.<\/p>\n

But yes, by all means \u2014 let\u2019s talk about whether the memo had the right header font on a Saturday.<\/p>\n

\n

\"\"Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast<\/a>, and co-host of Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email her<\/a> with any tips, questions, or comments and follow her on Twitter @Kathryn1<\/a>\u00a0or Mastodon @Kathryn1@mastodon.social.<\/a><\/em><\/strong><\/p>\n

The post The Shadow Docket Memos Are Damning. So Naturally, The Right Is Talking About The Leak.<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"<\/figure>\n

The New York Times dropped a bombshell on Saturday. Reporters Jodi Kantor and Adam Liptak obtained 16 pages of leaked internal memos<\/a> from six Supreme Court justices, showing \u2014 in their own words, (mostly) on their own letterhead \u2014 exactly how Chief Justice John Roberts led the Court to invent what we now call the shadow docket. The memos, exchanged over five days in February 2016 as the justices scrambled to kneecap President Obama\u2019s Clean Power Plan, are a remarkable window into how this institution actually works. Or rather, how sloppily it works when it wants to reach a predetermined result.<\/p>\n

The documents are damning. Georgetown law professor and shadow docket chronicler Steve Vladeck \u2014 who wrote just two months ago<\/a> that we\u2019d \u201cnever know (at least, until our grandkids can read the justices\u2019 internal papers)\u201d how the shadow docket was born \u2014 put it plainly in his newsletter<\/a>: Roberts applied the wrong legal standard, ignored the other side of the equities entirely, cited a BBC interview and a blog post as his \u201cfacts,\u201d and then steamrolled his colleagues when Justices Breyer and Kagan proposed reasonable compromises. The deliberation was, in Vladeck\u2019s words, \u201cutterly impoverished.\u201d<\/p>\n

And the conservative legal commentariat\u2019s response to all of this? Never mind the substance. WHO LEAKED IT?<\/p>\n

Of course. OF COURSE.<\/p>\n

We have been here before.<\/p>\n

We watched this entire movie play out with the Dobbs<\/em> leak. When Politico published Samuel Alito\u2019s draft opinion overturning Roe v. Wade<\/em> in May 2022, the reaction from the legal establishment was, as we noted at the time<\/a>, to be \u201cway more offended by the leak than by the content.\u201d And as my colleague Joe Patrice observed immediately<\/a>, the hand-wringing about the \u201cgravest, most unforgivable sin\u201d was a way for the legal establishment to avoid talking about what the opinion actually said \u2014 including Alito\u2019s gleeful citation of a 17th-century jurist who also sentenced women to death for witchcraft. (But sure, it\u2019s the leak<\/em> that\u2019s the legitimacy problem<\/a>.)<\/p>\n

Roberts launched a full investigation into the Dobbs<\/em> leak. Clerk phone records were seized. The U.S. Marshal\u2019s office ran the probe, blessed by an outside evaluator, Michael Chertoff, who happened to be Sam Alito\u2019s former colleague on the Third Circuit<\/a>, and who turned out to have a multi-year, seven-figure contract with the Court that nobody knew about at the time. The investigation found\u2026 nothing. Or said it found nothing. The nine most obvious stones were never turned over, because the Court\u2019s \u201cinvestigation\u201d explicitly did not cover the justices themselves<\/a>.<\/p>\n

Meanwhile, the entire time, the overwhelming logic of the situation<\/a> pointed to the leak coming from the conservative side. The motive was obvious: Joan Biskupic\u2019s book Nine Black Robes<\/em> later confirmed that the leak \u201ccalcified Alito\u2019s draft as the opinion of the Court, taking momentum away from John Roberts\u2019s death by a thousand cuts approach.\u201d The leak froze the votes. It eliminated the possibility of compromise. It gave Alito\u2019s scorched-earth opinion the permanence he wanted. In other words, the Dobbs<\/em> leak was, functionally, a conservative operation \u2014 and the ensuing hysteria about finding the liberal leaker was a way to muddy the waters<\/a> and prevent anyone from noticing that the most logical beneficiary was the guy who also allegedly leaked the Hobby Lobby<\/em> outcome to a network of right-wing Christian activists<\/a> years earlier.<\/p>\n

The NYT\u2019s shadow docket documents reveal something straightforwardly important: the birth of the modern emergency docket was sloppier, more ideologically driven, and less legally rigorous than the Court\u2019s defenders have ever admitted. This isn\u2019t speculation anymore\u2026 we\u2019ve got it in the justices\u2019 own words.<\/p>\n

Roberts argued for blocking Obama\u2019s Clean Power Plan using the wrong legal standard \u2014 he cited cases about staying lower court rulings pending appeal, but what was actually requested was staying executive agency action pending all judicial review, something the Court had never done before. He never acknowledged the novelty of what he was proposing. He cited a BBC interview and an EPA blog post \u2014 not exactly the vetted record one might hope for \u2014 as his factual basis. He reframed \u201cirreparable harm\u201d from its legal meaning into vague claims about \u201csubstantial and irreversible reordering of the domestic power sector,\u201d while completely ignoring the irreparable harm the government and the environment<\/em> would suffer from the Court\u2019s intervention.<\/p>\n

Justices Breyer and Kagan both proposed workable compromises. Roberts brushed them aside. Kennedy, apparently having decided that a stay was inevitable anyway, provided the fifth vote. And the rest is history \u2014 an unsigned, one-paragraph order issued on a February night. As Elbert Lin, West Virginia\u2019s solicitor general at the time, told the Times: \u201cThis had never been done.\u201d<\/p>\n

The memos also demolish the conservative talking point that internal deliberations over emergency applications are rigorous and substantive. They aren\u2019t. This was five days of brief memos, which included a weekend, with no in-person debate and no serious grappling with the novelty of what was being proposed. The memos are written in \u201cthe distinctive voice of the Justices,\u201d as Josh Blackman, a constitutional law professor at South Texas College of Law Houston and Volokh Conspiracy contributor, noted<\/a>, which is the one thing he got right before going off the rails. What they reveal is not rigor. It\u2019s a small club of powerful people moving fast and breaking things.<\/p>\n

Did the right-wing legal commentariat engage with any of this? Ha.<\/p>\n

Instead, Jonathan Adler, a constitutional law professor at Case Western Reserve University School of Law and a Volokh Conspiracy contributor, published a post raising the possibility<\/a> that the documents came from Sotomayor\u2019s chambers, based on the fact that her memo in the tranche lacks official letterhead, has no signature, and has an apparently wrong date. He emphasized (\u201cI stress the if\u201d) the if, but the downstream commentariat apparently does not know what \u201cif\u201d means.<\/p>\n

Blackman then followed up with his own posts suggesting investigators could reconstruct who had access to a \u201cnon-circulated\u201d draft<\/a>, and separately speculating about whether more leaks are coming<\/a>. Mollie Hemingway tweeted: \u201cAnother major Supreme Court leak to a left-wing media outlet to support a left-wing narrative. Interesting.\u201d RedState declared it part of a pattern of liberals \u201cdestroying the Court.\u201d Twitchy aggregated a parade of social media posts flatly stating \u201cIt was Sotomayor.\u201d A justice who was not even at the Court in 2016, Ketanji Brown Jackson, was also somehow fingered by posters whose racism apparently means they\u2019re incapable of checking a calendar.<\/p>\n

There\u2019s just one problem. Adler\u2019s \u201cclue\u201d isn\u2019t much of a clue.<\/p>\n

Vladeck pointed out on Bluesky<\/a> that Sotomayor\u2019s memo was almost certainly filed on Saturday, February 6 when she, her clerks, and any staff support would have been out of the office. A memo dashed off on a Saturday without secretarial support would naturally lack letterhead and a formal signature. That\u2019s not a smoking gun. That\u2019s a weekend. Adler responded directly: \u201cI did not say clerk,\u201d he noted his post pointed at chambers<\/em> broadly, not a specific clerk. He then said, \u201cI think there are a range of possibilities, and the clue may not be much of a clue.\u201d <\/p>\n

But before we move on, let\u2019s give the terse \u201cI did not say clerk,\u201d a deeper look. When Vladeck pushed back on the Sotomayor-chambers theory by pointing out that no clerks or staff would have been around on a Saturday to format the memo properly, Adler didn\u2019t say \u201cfair point, that explains it.\u201d He said he never blamed a clerk<\/em>. Which leaves exactly one person in Sotomayor\u2019s chambers who would unquestionably have been working on a Saturday while a major emergency application was live: Justice Sotomayor herself. Adler appears to be suggesting, without quite having the nerve to say it plainly, that a sitting Justice of the United States Supreme Court personally leaked decade-old internal deliberations to the New York Times.<\/p>\n

It\u2019s also, notably, a considerably harder claim to sustain. Vladeck went on to offer what he thinks is the actually interesting clue: the Times doesn\u2019t have the Thomas, Scalia, or Ginsburg memos, suggesting the leaker didn\u2019t have the full case file. That\u2019s more consistent with someone who had access to a subset<\/em> of circulated memos \u2014 which could describe a whole host of folks. The absence of a full file is not the profile of someone who raided a complete chambers archive, like a Supreme Court justice. It\u2019s the profile of someone who had whatever landed in their specific inbox a decade ago (or any time since then) and held onto it.<\/p>\n

Here\u2019s the thing the right-wing commentariat does not want to discuss: the shadow docket has done more damage to the credibility of the Supreme Court than any leak ever could.<\/p>\n

This is not a new observation. Justice Jackson said it herself<\/a> at Yale Law School recently: when she clerked in 1999, the emergency docket was used \u201calmost exclusively for death row inmates.\u201d Today the Court \u201croutinely opts to enter the fray, and it fails to acknowledge the harms that follow when the Supreme Court of the United States consistently and casually divests the lower courts of their equitable authority.\u201d Unsigned, unexplained orders that reshape national policy \u2014 on immigration, on the environment, on federal workforce policy \u2014 issued after a few days of memo-trading. With no oral argument. Often with no reasoning at all.<\/p>\n

The memos show that this was always the plan. Roberts, in 2016, decided that protecting conservative policy goals from an Obama regulation was worth blowing up the Court\u2019s procedures. He did it with sloppy reasoning, cherry-picked facts, and a complete indifference to the harms on the other side of the ledger. *That* is the scandal. That has always been the scandal. The leak is just how we found out about it.<\/p>\n

But yes, by all means \u2014 let\u2019s talk about whether the memo had the right header font on a Saturday.<\/p>\n

\n

\"\"Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast<\/a>, and co-host of Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email her<\/a> with any tips, questions, or comments and follow her on Twitter @Kathryn1<\/a>\u00a0or Mastodon @[email\u00a0protected].<\/a><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

The New York Times dropped a bombshell on Saturday. Reporters Jodi Kantor and Adam Liptak obtained 16 pages of leaked internal memos from six Supreme Court justices, showing \u2014 in their own words, (mostly) on their own letterhead \u2014 exactly how Chief Justice John Roberts led the Court to invent what we now call the […]<\/p>\n","protected":false},"author":3,"featured_media":149243,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-149242","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/04\/IMG_5243-1-scaled-e1623338814705-620x568-HeEqEq.jpg?fit=620%2C568&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/149242","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=149242"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/149242\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/149243"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=149242"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=149242"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=149242"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}