The New York Times unveiled a critical scoop last Saturday, showcasing 16 pages of internal Supreme Court memos that reveal the foundations of what is known as the shadow docket. These documents, exchanged among six justices over five days in February 2016, detail the Court’s process in trying to dismantle President Obama’s Clean Power Plan. The memos, mostly written on official letterhead, expose a rushed and arguably predetermined judicial process led by Chief Justice John Roberts.

Legal experts, including Georgetown law professor Steve Vladeck, have criticized the handling of the shadow docket, pointing out that Roberts applied incorrect legal standards and overlooked alternative equities, relying on unconventional sources like a BBC interview and a blog post to make his case. The documents hint at a disturbingly haphazard approach to significant judicial decisions.

Yet, instead of addressing the substance of these revelations, the conversation among conservative legal commentators quickly shifted to the identity of the leaker. This response mirrors the pattern observed during the leak of the draft opinion in the Dobbs case, which overturned Roe v. Wade. In both scenarios, the focus was diverted from the content of the documents to the act of leaking itself, raising questions about motivations and diverting attention from the implications of the justices' deliberations.

The shadow docket memos suggest a lack of rigorous debate and a tendency to fast-track decisions with far-reaching consequences. Justices Breyer and Kagan offered potential compromises that were ignored, and the final decision to block the Clean Power Plan emerged from a brief, unsigned order issued abruptly one February night. This process starkly contrasts with the traditionally thorough deliberations expected in the highest court.

The documents also undermine the argument that internal deliberations over emergency applications are substantive and rigorous. It appears more as a quick exchange among a select group of influential individuals, raising concerns about the integrity and thoroughness of the Court’s emergency docket operations.

The focus on the leak rather than the contents of the leak is indicative of a broader issue within the conservative legal community, which appears reluctant to engage with criticisms of the shadow docket's legitimacy and impact on the Supreme Court's credibility. As Justice Jackson recently noted, the misuse of the emergency docket could have corrosive effects on public trust in the judicial system, emphasizing the need for transparency and accountability in these high-stakes decisions.

Ultimately, these leaked memos offer a rare glimpse into the inner workings of the Supreme Court, highlighting significant procedural and ethical questions. The real issue remains the content of these discussions and their implications for justice and legal integrity, far overshadowing the drama around the leak itself.