Justice Brett Kavanaugh, left, Justice Amy Coney Barrett, center, and retired Supreme Court Justice Anthony Kennedy listen as US President Donald Trump addresses a joint session of Congress at the US C
The conservative U.S. Supreme Court increasingly relies on the secretive shadow docket to derail clean air standards and remove guardrails on a Trump White House, but the New York Times managed to nab confidential correspondence from 2016 that provides insight on the furtive court’s effort to dismantle an EPA crackdown on poisonous airborne mercury.
“Over five days in the winter of 2016, the justices of the Supreme Court exchanged an extraordinary series of confidential memos about how the court should address an ambitious climate change initiative from President Barack Obama. The debate yielded an order halting the program by a 5-to-4 vote — without any explanation,” reports the Times. “Legal scholars have called the episode the birth of the modern shadow docket, in which the court has used truncated procedures cloaked in secrecy to block or allow major presidential initiatives in terse rulings.”
The Times reports these confidential papers are normally not disclosed until after a judge’s death, meaning the “public might not learn what happened, and why, for decades” after a decision.
In an effort to unravel new clean air standards by the Obama administration, the communications reveal Chief Justice John Roberts sought to invoke the “major questions doctrine” to block federal regulations seeking to shut down dirty coal plants in favor of newer, cleaner energy tech. His argument was that agencies can’t make decisions of vast “economic and political significance” if Congress explicitly grants them that power. The Times notes that the conservative court has increasingly relied upon that argument to discourage energy evolution and cleaner air standards.
Among some of Roberts’ correspondence are claims that “solar plants are not built in a day” but that renewable energy facilities are virtually here to stay once constructed and do “irreparable harm” to Congress’ power to kill or discourage them.
Roberts also accuses the Democrat-led E.P.A. of sidestepping the court overturning an Obama administration rule limiting coal plant mercury emissions — which are a proven neurotoxin according to President Donald Trump’s own EPA. The Times also reports that the fact that most power plants were already in compliance “or well on their way” to reducing mercury emissions appeared to anger the chief justice all the more.
Further private correspondence reveals liberal justice Elena Kagen was “not buying” Roberts’ insistence that immediate action by the court was necessary to save power companies the costs of upgrading or shutting down dated technology, while a third liberal justice asked the court to slow down its EPA rollback, while conservative Justice Samuel Alito is already prepared to rule in favor of continued mercury poisoning.
The “shadow papers,” according to the Times, represent the inner workings of a conservative court that has become increasingly mysterious within the last decade and it prefers to render decisions without argument or public scrutiny.