The emergency order from the Supreme Court that halted former President Barack Obama’s key clean energy plan in 2016 followed a revealing series of internal memos among justices that highlighted ideological divisions over the intervention. These documents, which were recently disclosed, showed that Chief Justice John Roberts, appointed by former President George W. Bush, urged the court to block Obama’s initiative as liberal justices opposed it.
The memos raised concerns not only about the legality of the Clean Power Plan itself but also about its potential to drastically alter the power sector before the justices had a chance to fully assess its implications. Roberts noted that without an injunction, the plan would significantly change the power landscape, stating, “Absent an injunction, the Clean Power Plan will cause (and is causing) a significant and irreversible reordering.” This memo was published Friday in the New York Times.
Fox News Digital reached out for comments from the Supreme Court’s communications department regarding the leaked documents.
Roberts’ request emerged as justices reviewed what seemed like an unusual emergency filing, known as a “shadow docket,” from Republican-led states and external groups aimed at stopping the Obama-era regulations designed to reduce carbon emissions over the next quarter-century. Liberal justices cautioned that such actions would deviate from established practices.
The Clean Power Plan, initially intended to be enforced by the Obama Environmental Protection Agency, aimed to regulate coal, oil, and gas producers under the Clean Air Act. According to Roberts, without the Supreme Court’s interference, states and industries would be irreparably harmed by a rule with, in his view, a slim chance of surviving legal scrutiny.
Justice Elena Kagan, nominated by Obama, voiced her disagreement in a separate memo, expressing that the unique nature of the requests raised substantial concerns for her.
The day Kagan expressed her dissent, Justice Samuel Alito, also appointed by Bush, shared a memo supporting Roberts’ stance. He cautioned that ignoring this rule could jeopardize meaningful judicial review and threaten the court’s legitimacy.
Eventually, in a 5-4 decision along ideological lines, the justices temporarily blocked Obama’s Clean Power Plan, which was perceived as a significant blow to Democrats and a swift intervention that surprised many officials at the time. The rapid exchange of memos from late January to early February 2016 illustrated how quickly the justices acted in response to major presidential initiatives.
Law professor Jonathan Turley remarked in an op-ed that the anonymous leak to the New York Times was the second occurrence of classified information being disclosed after the 2022 Dobbs opinion leak, indicating internal disputes among justices. He noted, “Despite an institution that prides itself on confidentiality, the courts seem increasingly multifaceted and partisan concerning these leaks.”
The New York Times highlighted that legal experts often see the Clean Power Plan ruling as one of the earliest examples of the Supreme Court using emergency actions to limit the executive branch’s role in determining national policy.
Justice Ketanji Brown Jackson, a Biden appointee, has been particularly vocal about the rapid decisions arising during Trump’s presidency, where fast-track processes often favor the president. Jackson’s dissents, typically supported by Kagan and Sotomayor, have been significant, especially as the trio often reached a 6-3 consensus favoring Trump in emergency situations.
Recently, Jackson voiced her frustrations during a talk at Yale Law School, criticizing emergency decisions as quick and speculative, indicating they could detract from the Supreme Court’s purpose. She stated, “We cannot expect the public to have confidence in our justice system if we continue to give the green light to harmful actions without clear explanations.”
Experts suggest that the surge in emergency filings correlates with an uptick in executive orders increasingly acting as the primary form of legislation in the absence of congressional action. Attorney Canon Shanmugam articulated this shift during a Federalist Society discussion.
