Chief Justice of the United States John Roberts arrives before the 60th Presidential Inauguration in the Rotunda of the U.S. Capitol in Washington, Monday, Jan. 20, 2025. Julia Demaree Nikhinson/Pool via REUTERS/File Photo
Georgetown Law Professor Steve Vladeck eviscerated Chief Justice John Roberts' defense of judicial independence, arguing the Roberts Court's own decisions have done far more to erode the Supreme Court's legitimacy than protect it.
Vladeck zeroed in on newly leaked internal memos from the 2016 Clean Power Plan stay — the first time the Court used emergency relief to halt nationwide agency action.
"In the first major case where the Court granted emergency relief to shape policy nationwide, the justice leading the charge was doing much more than calling balls and strikes," Vladeck wrote.
Over the weekend, New York Times reporters Jodi Kantor and Adam Liptak released "16 pages of (leaked) internal memoranda from six of the justices providing a window into how and why the Court did what it did on" a key ruling against former President Barack Obama in killing his Clean Power Plan in 2016.
"The memos are, at least to me, a remarkable combination of eye-opening and sadly unsurprising," said Vladeck. "I think there are at least five significant takeaways from these materials — none of which paint the Court in an especially flattering light. And at the heart of most of them is Chief Justice Roberts."
His first take called the decision "utterly impoverished." There was no only no debate or in-person meetings where the justices could even discuss their thoughts. There was nothing more than an exchange of brief memos over five days, two of which were weekend.
"I’ve suggested before that folks would be floored to see just how little analysis and deliberation go into rulings like this that produce massive real-world effects; here, for once, is pretty compelling direct evidence in support of that speculation — and a pretty powerful rejoinder to those who have insisted that the Court’s internal debates in these cases are rigorous and deeply substantive. Whatever else this was, it wasn’t that," said Vladeck.
Another observation he made is that Roberts has basically taken over the court and railroaded everything, whether or not he's accurate.
At one point, Vladeck said, "Roberts invokes the wrong standard for relief — citing an everyday rule for pausing a lower court's decision while it's being appealed. What they were actually doing in the Clean Power Plan case was way bigger and unprecedented — stopping the Environmental Protection Agency (EPA) from even starting to enforce its new environmental rules nationwide until all lawsuits against those rules were fully done — which no Supreme Court had ever tried before."
Roberts picks an easier test to pass by pretending it is perfectly normal "pause a lower court's decision while we appeal." But even with that easier test, he still cheats. Instead of proving the normal thing (that companies would suffer "irreparable harm" they can't undo later), he scares everyone by saying the rules would cause a "huge, irreversible shakeup of America's entire power industry."
"And what opinion is most often cited for this idea that the government is always harmed? A 2012 in-chambers opinion by … Chief Justice Roberts (2012, just to be clear, was before 2016)," said Vladeck. "In other words, Roberts didn’t change his mind sometime between 2016 and 2025; he’s just being a hypocrite. It’s irreparable harm for Republican presidents; just not Democrats (Roberts also claims the stay he’s proposing is 'to preserve the status quo pending judicial review,' never mind that the 'status quo' was that the rule was in effect)."
Those are just a few of the points Vladeck made after looking at the decade-ago ruling.
The professor is a longtime critic of the so-called "Shadow Dicket," and wrote a book to that effect, talking about the way that it was able to grow its own power while undermining the republic.