wtf…
How a five-day secret exchange in February 2016 broke the rule of law — and gave us the shadow docket we live under today
There are moments when a veil lifts. When something we had suspected hardens into something we know. When the machinery of betrayal is caught mid-turn, and we see — at last — the hands on the levers.
Last weekend, The New York Times published one of those moments.
I first came across the reporting through Sara Peach’s Friday newsletter at Yale Climate Connections, and I cannot let it pass without amplification. Because what the Times revealed is not a minor procedural story. It is, quite simply, a confession. A confession about how the United States Supreme Court — the body we are told stands above politics, above industry, above the passions of the moment — was weaponized a decade ago against the single most consequential climate regulation in American history. And how, in weaponizing itself, it gave birth to a new and lawless instrument of power: the so-called shadow docket.
I want to be precise about what the memos show. And I want to be honest about what they mean.
The Five Days That Broke the Court
Between February 5 and February 9, 2016, Chief Justice John Roberts circulated a series of internal memos to his colleagues. The subject was the Obama administration’s Clean Power Plan — an Environmental Protection Agency rule that would have required coal, oil, and gas power plants to reduce their carbon emissions under the Clean Air Act. It was the first serious, structural federal effort to confront the climate crisis at its largest industrial source.
The D.C. Circuit Court of Appeals — the very court whose job it is to review such regulations — had already determined that no emergency stay was necessary. It had put the case on a fast track. The normal, lawful, well-worn path forward was clear: let the lower court do its work. Review the evidence. Hear the arguments. Decide on the merits.
Roberts refused to wait.
In a blast of memos, he argued that the Supreme Court had to act immediately — that the rule would cause “substantial and irreversible” harm to the power industry if allowed to take effect even provisionally. He called it “the most expensive regulation ever imposed on the power sector.” He cited an industry-funded report to make his case. He quoted a BBC interview. He predicted that the Court would eventually strike the rule down anyway, so it might as well strike it down now, without briefing, without argument, without explanation.
Justice Elena Kagan called the move “unprecedented.” Justice Sotomayor warned that the industry analysis Roberts was relying on was “a likely biased view.” Justice Breyer pushed back. The three liberal women on the Court — joined by Breyer — objected that no court in American history had ever stayed a federal regulation before a lower appeals court had even reviewed it.
Roberts didn’t care. On February 9, 2016, the Court issued a one-paragraph order. No reasoning. No explanation. Five to four. The Clean Power Plan was dead.
It was the first shot in a new kind of war.
What Was Never Mentioned
Read the Times reporting carefully and you will notice something that ought to stop the breath of every human being on this planet.
In sixteen pages of internal debate — in the correspondence of the nine most powerful jurists in the United States, deciding the fate of the single most important climate regulation their country had ever produced — not one justice, conservative or liberal, mentioned the dangers of a warming planet. Not as a harm to weigh. Not as a consideration. Not even as a footnote.
They debated the cost to the coal industry. They debated the inconvenience to utility companies of having to draft compliance plans. They debated the “irreparable harm” that might befall shareholders.
The children who will inherit a destabilized biosphere? The communities already burning, drowning, choking? The elders in Bangladesh, the farmers in the Horn of Africa, the Indigenous nations watching their lands transform? The entire interlocking web of life on Earth?
Not a word.
This is not an oversight. It is a worldview. It is the worldview of a judiciary that has internalized, so completely, the priorities of extractive capital that the survival of the biosphere does not even register as a legal interest worthy of mention.
The Shadow Docket Is Now the Main Event
That five-day exchange in 2016 was not just a single bad ruling. It was a precedent for lawlessness. It established that the conservative majority on the Supreme Court could — whenever it chose — bypass normal procedure, skip lower court review, issue unsigned and unexplained orders, and reshape American life through fiat.
Georgetown law scholar Steve Vladeck, who literally wrote the book on this, has described the shadow docket as the Court’s power “to resolve cases through unsigned and un- or thinly explained orders.” Once exceptional, it is now routine. The Associated Press reported that the Supreme Court sided with Donald Trump in more than twenty shadow docket decisions last year alone. Twenty. Unsigned. Unexplained. Consequential.
Vladeck put it plainly this week: people “would be floored to see just how little analysis and deliberation go into rulings like this that produce massive real-world effects.” The memos, he noted, are direct evidence of exactly that.
Bill McKibben was even more blunt. He called Roberts’s 2016 maneuver “the most cynical thing a chief justice has ever done” — and said it marks “the end of any sense that the federal judiciary is a fair arbiter instead of a politically engaged player in our national life.”
Legal scholar Lisa Heinzerling pointed to something deeper still: the conservative justices, she observed, simply do not trust the EPA. They are willing to read the most ordinary bureaucratic statements from agency staff as evidence of some sinister ambition — the ambition, apparently, to protect the environment.
The Pattern We Must Name
I write a great deal about Adaptive Resiliency — about the necessity, in a time of Climate and Ecological Emergency, of building our own capacity to understand, respond, and protect one another. I write about it because I believe the institutions many of us were raised to trust have been hollowed out from within. The Times reporting is not a surprise to me. It is a confirmation.
The highest court in the United States has been converted, piece by piece, into a delivery mechanism for the fossil fuel industry and the broader architecture of extractive power that funds it. The judicial branch was captured through decades of patient, well-funded work — through the Federalist Society, through the Judicial Crisis Network, through dark-money campaigns to shape who sits on the bench and what they believe when they get there. The 2016 memos are what that capture looks like when the door is briefly left open.
And here is the point I want to leave you with, because I refuse to end in despair:
Naming the pattern is the first act of resistance.
As long as millions of Americans believe the Supreme Court is a neutral referee, the pattern holds. The moment enough of us understand that it is not — that it has been, for at least a decade, an active player in the suppression of climate action — the pattern begins to break. Courts can be reformed. Norms can be rebuilt. Legitimacy, once lost, can be withheld until it is earned again.
We are not powerless. We are simply living inside a story that has been told to us for too long without interruption.
So here is the interruption.
The shadow docket was born in secret, in five days, around a table of nine, in service of coal. You deserved to know. Now you do.
Source: Sara Peach’s Friday newsletter for Yale Climate Connections, drawing on reporting by Adam Liptak and Jodi Kantor in The New York Times. Additional context from Steve Vladeck, Kate Aronoff (The New Republic), The Bucks County Beacon, and E&E News.
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