In a recent report, the New York Times examined the Supreme Court’s use of the emergency docket to stay President Barack Obama’s Clean Power Plan in 2016. Jodi Kantor and Adam Liptak emphasized the atypical nature of this decision, portraying it as a departure from traditional judicial procedures due to its speed, secrecy, and lack of a written opinion. However, according to SCOTUSblog, these characteristics were not unprecedented in the court’s historical approaches to emergency dockets.
The New York Times accurately identifies the novel aspect of this case: it was the first instance of the Supreme Court halting a significant executive regulatory action before an appellate court ruling. This action was significant, as noted by West Virginia’s then-solicitor general, Elbert Lin, because it set a precedent for immediate judicial intervention without prior appellate review. However, SCOTUSblog’s Taraleigh Davis points out that the deliberative process used by the justices was consistent with historical practices, involving detailed memos and collegial exchanges.
The Times’ portrayal of the justices’ behavior and the alleged deviation from their usual painstaking processes, including the use of informal first names and citing external sources, is criticized as inaccurate. Historical examination, such as that of Justice John Paul Stevens’ papers, reveals that these are long-standing practices on the emergency docket. The use of informal signatures and candid language in memos does not necessarily indicate a lack of due diligence or decorum.
The question of why the justices decided to grant such an unusual stay remains a matter of debate. Chief Justice John Roberts’ rationale involved assessing potential irreparable harm to the coal industry, highlighting a legal framework that tends to be revisited in evaluations of executive actions. Yet, as SCOTUSblog notes, this does not suggest a capricious decision but rather a debated application of established legal standards.
The article importantly acknowledges gaps in information, noting that not all justices involved might have documented their views in memos, thus leaving the ultimate reasoning partially opaque. Despite the Times’ emphasis on the 2016 decision as a pivotal shift in the court’s emergency docket practices, the underlying procedures remained aligned with precedent. The critical change was in the nature of the relief sought and granted, marking a noteworthy evolution in judicial intervention that litigants have increasingly leveraged in subsequent cases.