A Supreme Court leak is giving liberals new ammunition in their long-running criticism of the emergency docket after recently published internal memos showed how the high court fast-tracks major cases, a process that critics say has served to advance key parts of President Donald Trump’s agenda in his second term.
“The liberals are salivating over this. They’re very happy because it reinforces their narrative,” South Texas College of Law professor Josh Blackman told Fox News Digital.
The memos, published Saturday by The New York Times, offered a rare look at how Chief Justice John Roberts pressed the court in 2016 to quickly block President Barack Obama’s Clean Power Plan.
But the immediate concern now is not about what the documents revealed about the Supreme Court’s emergency docket but rather the leak itself, according to experts, who said it was a deliberate attempt to damage the court’s credibility.
“The bigger issue is people are leaking stuff to try to hurt the court,” Blackman said. “That’s the bigger story. This was done to try to make the court look bad. Roberts, I think, doesn’t come out looking very good in this one. … I think it’s designed to hurt the chief in particular.”
The leaked internal memos appeared centered on the 5-4 decision along ideological lines in February 2016 to block Obama’s signature energy plan. The memos, written by and circulated among the justices, showed Roberts urging his colleagues to quickly intervene and halt the plan, a revelation that fueled attacks from the left on the so-called shadow docket.
“The new reporting highlights the role of this rashly issued stay in inaugurating the Supreme Court’s use of unexplained and hastily issued ‘shadow docket’ proceedings to alter major national policies,” Environmental Defense Fund general counsel Vickie Patton said in a statement Monday.
The leak has generated several theories in legal circles that a liberal justice or retired liberal justice or one of their former clerks passed the 16 pages of memos off to The New York Times to weaken confidence in high-profile emergency docket decisions, which have often favored Trump since he took office. A similar, smaller-scale leak to the same New York Times reporters occurred in 2024.
A ‘deteriorating culture at the court’
Blackman noted the person who gave the decade-old memos to The New York Times could share even more.
“This person probably kept a lot of things and decided to leak this, and there might be even more coming,” Blackman said. “I think this is absolutely partisan, and it’s done in a way to hurt and wound the court and to reaffirm this notion that the shadow docket is an evil, nefarious regime.”
George Washington University law professor Jonathan Turley echoed Blackman’s sentiments in an op-ed, saying “the controversy over the use of the shadow docket is immaterial to this story.”
Turley pointed to the Dobbs opinion leak to Politico from 2022, which was, at the time, a stunning violation of the high court’s confidentiality. Turley noted while that breach was an apparent “effort to influence the final opinion,” this latest one is about an old case and therefore “had a purely malicious purpose to embarrass or disrupt the court.”
“The leaks appear to reflect a deteriorating culture at the court,” Turley added.
The Supreme Court’s press office did not respond to an inquiry from Fox News Digital about the leaks.
Sen. Josh Hawley, R-Mo., told Fox News on Monday the memos were “100%” intended to discredit the court. Hawley and his wife, Erin, a lawyer at the conservative Alliance Defending Freedom, both previously worked as law clerks for Roberts.
“You can tell from the news article that it builds that way,” Hawley said. “They criticize the court for how they’re managing their docket. They say this is some big conspiracy. The only conspiracy is the multi-year effort funded by somebody to undermine the institution of the court from within, from without. … We need to find out who’s doing this.”
Shadow docket criticism
The emergency docket allows litigants to bypass lengthy court proceedings and seek immediate relief from the Supreme Court if lower courts block them through restraining orders or preliminary injunctions.
Democrats have criticized the Supreme Court for the higher frequency of emergency decisions, which often contain little explanation but have increased because of what legal experts say is a rise in executive actions in lieu of Congress passing laws.
In Trump’s second term, the justices have ruled in favor of Trump on emergency decisions most of the time, clearing the way for Trump to fire masses of federal employees, cancel hundreds of millions of dollars in federal contracts, move forward with aggressive immigration policies and more.
Last week, Justice Ketanji Brown Jackson, a Biden appointee, tore into the high court’s majority during a Yale Law School speech for issuing what she said were rushed, “scratch-paper musings” that advance “harmful” policies.
Upon introducing a bill to “increase transparency” of the emergency docket in December, Rep. Jamie Raskin, the leading Democrat on the House Judiciary Committee, said the Supreme Court was losing credibility by not allowing cases to first play out in the lower courts.
“The Roberts Court’s reliance on the Shadow Docket to covertly fast-track one-paragraph decisions on major cases drives tremendous mistrust toward Justices already facing record-low levels of public confidence,” Raskin said at the time.
Roberts the ‘bulldozer’
The Clean Power Plan would have involved the Obama Environmental Protection Agency imposing regulations on coal-powered plants under the Clean Air Act, a move that red states and industry groups implored the Supreme Court to quickly stop in 2016.
According to the memos, Roberts, an appointee of former President George W. Bush, wrote that without the high 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.”
The New York Times described Roberts as acting like a “bulldozer.” Blackman said “it’s very clear” that Roberts stepped in to stop the EPA administrator from ramming through a plan in Obama’s last year in office that could reshape the energy sector with only the “very liberal” D.C. appellate court weighing in.
In another memo, Justice Elena Kagan, an Obama appointee, disagreed with Roberts, saying “the unique nature of the relief sought in these applications gives me real pause.”
In a matter of days, the high court issued its brief, unexplained decision along ideological lines to temporarily block Obama’s plan. The move would become a death blow to Obama’s efforts because Democrats would lose the White House later that year.
Blackman noted that accountability for leaking the private memos, which framed Roberts as spearheading a reckless decision, would be difficult, saying any possible crime would fall outside of statutes of limitations and that, outside of the possibility of attempting to disbar the culprit for an ethics violation, there was no real recourse, especially for conservatives seeking to punish a possible left-leaning leaker.
“If a liberal leaks, they’ll get a medal,” Blackman said. “They’ll become a hero. They’ll suffer zero professional consequences. In fact, they’ll probably be better off.”
