So that's how the Shadow Docket works.
In February 2016, CJ Roberts circulated a memo to his colleagues bringing five stay applications against the Obama administration's Clean Power Plan — the EPA rule projected to reduce power-sector carbon emissions by 32 percent by 2030. The D.C. Circuit had denied a stay eleven days earlier.
Roberts had had the briefing papers for approximately 𝑜𝑛𝑒 𝑑𝑎𝑦 when he recommended granting emergency relief anyway, concluding that the rule was "highly unlikely to survive" review and that allowing it to operate would produce irreversible economic harm.
Two fellow justices wrote back immediately: Elena Kagan called the posture "unprecedented" — the Court intervening before any appellate tribunal had reviewed the merits — and a third justice, probably Sotomayor, documented that the government's own economic projections, which Roberts had cited as evidence of harm, carried an explicit agency caveat that they were unsuited for near-term forecasting. Roberts had read the caveat. He used the numbers anyway.
Justices Breyer and Kagan both proposed less drastic alternatives — directing states to seek administrative extensions while the D.C. Circuit worked — and both documented the unusual nature of what Roberts was requesting.
Roberts replied that the rule was the "most expensive regulation ever imposed on the power sector" and that, absent immediate intervention, the EPA administrator's own words indicated the rule would be "baked into the system" before the Court could test its legality.
Anthony Kennedy provided the fifth vote with a four-sentence memo: a stay would be granted in four to six months anyway, so fairness counseled granting it now.
Gift Link.