When The New York Times published 16 pages of internal Supreme Court memos on Saturday, the immediate political response followed a predictable script: liberals pointed to the documents as evidence of a court willing to rush major decisions for ideological purposes; conservatives argued the content was being stripped of its context.
But legal experts on both sides of the debate say the more significant story is not what the memos revealed about a decade-old case. It is the fact that they were leaked at all — and what that leak was designed to accomplish.
“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. “But the bigger issue is people are leaking stuff to try to hurt the court. That’s the bigger story.”
The documents, written by and circulated among the justices in 2016, center on the court’s 5-4 decision — split along ideological lines — to temporarily block President Barack Obama’s Clean Power Plan, a signature environmental regulation that would have imposed new emissions restrictions on coal-powered plants.
According to the memos, Chief Justice John Roberts — a George W. Bush appointee — pressed his colleagues to intervene quickly, writing that without the court’s action, “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 characterized Roberts’ approach as that of a “bulldozer.” Justice Elena Kagan, an Obama appointee, pushed back internally, writing that “the unique nature of the relief sought in these applications gives me real pause.”
The court ultimately issued a brief, unexplained ruling to block the plan — a move that critics have since used as an early example of what they call the “shadow docket”: the court’s emergency docket, through which it issues consequential decisions quickly and without detailed explanation.
The Clean Power Plan never recovered. Democrats lost the White House later that year, and the plan was never implemented.
Blackman noted that the context for Roberts’ intervention was the reality of the D.C. Circuit Court — the only appellate court that had weighed in — being, in his characterization, “very liberal.” Roberts, he said, was stepping in to prevent an EPA administrator from cementing a major energy regulation during Obama’s final year with only a single ideologically aligned court having reviewed it.
Why Experts Say the Leak — Not the Content — Is the Real Issue
The substance of the memos describes a 10-year-old internal deliberation. What concerns legal experts more is what their publication signals about the current state of confidentiality at the nation’s highest court.
Blackman was direct about his interpretation of the leak’s purpose: “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.”
He added a warning: “This person probably kept a lot of things and decided to leak this, and there might be even more coming. 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 drew a direct line between this leak and the 2022 Dobbs draft opinion leak to Politico — which caused a firestorm when it revealed the court’s direction on overturning Roe v. Wade before the official ruling was issued.
While the Dobbs leak appeared designed to “influence the final opinion,” Turley wrote in an op-ed, this latest one concerns an old, resolved 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 said.
The Supreme Court’s press office did not respond to Fox News Digital’s inquiry.
Who Leaked It — and Can Anyone Be Held Accountable?
Legal circles have generated several theories about the source: a liberal justice, a retired liberal justice, or a former clerk who passed the documents to The New York Times — the same outlet that received a smaller leak from the same reporters in 2024.
Sen. Josh Hawley, R-Mo. — who, along with his wife Erin Hawley, a lawyer at the Alliance Defending Freedom, previously clerked for Chief Justice Roberts — said Monday the leak was “100%” intended to discredit the court.
“You can tell from the news article that it builds that way. 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,” Hawley told Fox News.
Accountability, Blackman acknowledged, may be elusive. He said any potential crime would likely fall outside applicable statutes of limitations — and that beyond a potential ethics disbarment proceeding, there would be limited recourse, particularly if the leaker holds liberal sympathies.
“If a liberal leaks, they’ll get a medal. They’ll become a hero. They’ll suffer zero professional consequences. In fact, they’ll probably be better off,” Blackman said.
The Shadow Docket Debate Gets New Fuel
Whatever the intent behind the leak, it has provided fresh ammunition to those who have been arguing for years that the Supreme Court’s emergency docket needs greater transparency and accountability.
The shadow docket allows litigants to seek immediate relief from the Supreme Court when lower courts have blocked them through restraining orders or injunctions — bypassing the slower, more explanatory process of standard appellate review. Critics argue the resulting decisions are often issued with little or no public explanation of the court’s reasoning.
In Trump’s second term, the emergency docket has been particularly active. The justices have ruled in the administration’s favor on a series of consequential decisions — clearing the path for mass federal employee firings, the cancellation of hundreds of millions in federal contracts, and the advancement of aggressive immigration enforcement, among other policies.
Justice Ketanji Brown Jackson, a Biden appointee, publicly criticized the court’s majority last week during a Yale Law School speech, characterizing emergency docket decisions as rushed “scratch-paper musings” advancing “harmful” policies.
Rep. Jamie Raskin, the leading Democrat on the House Judiciary Committee, introduced a bill in December to increase transparency around the emergency docket.
“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.
The Environmental Defense Fund’s general counsel Vickie Patton pointed directly to the newly published memos in her response Monday, arguing the 2016 Clean Power Plan stay had “inaugurat[ed] the Supreme Court’s use of unexplained and hastily issued ‘shadow docket’ proceedings to alter major national policies.”
The publication of decade-old Supreme Court memos has accomplished precisely what legal experts say it was designed to accomplish: it has given critics of the court new material to work with, it has placed Chief Justice Roberts in an unflattering light, and it has reinvigorated a debate about the shadow docket at a moment when that debate already has considerable national visibility. Whether the leaker is ever identified — and whether accountability is even possible — remains uncertain. What is not uncertain, according to the experts tracking this situation, is that someone with access to the court’s most confidential internal communications chose to weaponize that access. And as Blackman warned: there may be more to come.