This episode of Five to Four features hosts Peter, Rhiannon, and Michael analyzing leaked Supreme Court memos from the 2016 clean power plan case that halted Obama's EPA regulation.

The leaked memos, published by the New York Times in April 2024, provide unprecedented insight into how Chief Justice Roberts, Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Samuel Alito debated this shadow docket case that many consider the birth of the modern emergency docket.

The hosts also discuss recent Supreme Court drama, including Justice Sotomayor's public criticism of Justice Kavanaugh and Justice Thomas's speech comparing progressivism to fascism and communism.

The Birth of the Modern Shadow Docket

The 2016 case represented the first time the Supreme Court halted a federal agency regulation nationwide before any lower court had reviewed the issue, creating a precedent where parties could bypass lower courts entirely.

Before this case, the emergency docket was primarily used for death penalty cases and election issues that needed quick input from the highest court, not for adjudicating federal policy.

As Steve Vladeck explains in The Shadow Docket, there's no definitive threshold where the emergency docket became problematic - it's about patterns of how it's being used to decide politically charged cases without briefing or arguments.

Roberts' Sloppy Legal Analysis Exposed

Chief Justice Roberts used the wrong legal standard, citing cases about staying lower court orders when no lower court had issued any ruling to stay.

Roberts cited BBC articles and blog posts from industry briefs, with no factual record developed, admitting 'I recognize that the posture of this stay request is not typical' - Peter

Roberts justified the unprecedented intervention because of 'what has been described as the most expensive regulation ever imposed on the power sector,' prioritizing industry costs over environmental harm.

The liberal justices pointed out that states could request two-year extensions and private companies had six years before compliance, undermining claims of 'irreparable harm.'

Conservative Justices Prioritize Industry Over Environment

Roberts focused obsessively on costs to the power industry while ignoring that monetary outlays are typically not considered irreparable harm since money is fungible.

Justice Alito claimed 'a failure to stay this rule threatens to render our ability to provide meaningful judicial review and by extension, our institutional legitimacy' despite the action being unprecedented.

Anthony Kennedy provided the decisive fifth vote with a brief memo predicting future court actions without any factual record to support his reasoning.

The conservatives ignored that halting the regulation would cause actual irreparable environmental harm - 'those are birds that might live, those are streams that might run clear' - Peter

Conservative Legal Commentators Rush to Defend Roberts

Molly Hemingway attacked the leak itself, suggesting whoever leaked the memos should face bar discipline rather than addressing the substance of Roberts' poor reasoning.

Josh Blackman at the Volokh Conspiracy worried the leak was 'effective at making the Supreme Court look like shit' and complained it provides 'fodder for Supreme Court reform.'

SCOTUSblog, now owned by right-wing outlet The Dispatch, published multiple pieces defending Roberts, with one author claiming the memos show justices 'setting precedent' while ignoring they used the wrong legal framework.

Jack Goldsmith criticized journalists for portraying Roberts as 'an almost bad faith actor' while defending Roberts' use of the major questions doctrine he invented.

Supreme Court Drama: Sotomayor vs. Kavanaugh

Justice Sotomayor publicly criticized Kavanaugh's concurrence in Egbert v. Boule, calling him 'a man whose parents were professionals' who 'probably doesn't really know any person who works by the hour.'

Sotomayor later issued an apology saying 'I made remarks that were inappropriate. I regret my harmful comments' but notably didn't retract the substance of her criticism.

The public shot at another justice is relatively uncommon and may signal that 'old norms are melting away because everyone is starting to hate each other so fucking much' - Peter

Thomas Compares Progressivism to Fascism and Communism

Justice Thomas gave a speech at University of Texas Law School blaming 'every social ill of the 20th and 21st century on the rise of progressivism.'

Thomas named four historical figures 'intertwined with the rise of progressivism': Hitler, Stalin, Mao, and Mussolini, essentially comparing progressive policies to fascism and communism.

Thomas claimed progressivism was 'an attack on the Declaration of Independence and the founding principles of our country,' echoing right-wing talking points about Woodrow Wilson.

The irony was noted that Sotomayor had to apologize for calling Kavanaugh out of touch while Thomas faced no consequences for comparing colleagues to genocidal dictators.