Legal Scholar Criticizes NYT's Coverage of Leaked Supreme Court Memos on Clean Power Plan

Harvard Law professor Jack Goldsmith has published a critical analysis of the New York Times' coverage of leaked Supreme Court memos related to the Obama Administration's Clean Power Plan (CPP). His post, titled "Jack Goldsmith on the NYT and the Leaked Supreme Court 'Shadow Papers'", appears on Reason.com.

Goldsmith’s Assessment of the CPP Order

Goldsmith begins by addressing the unusual nature of the CPP order, clarifying that while interim orders on critical issues are not unprecedented, the CPP case was novel for another reason:

The CPP order was novel at the time, I believe, because it temporarily shut down a presidential program even before the court below had a chance to rule on the issue.

He notes that the Court has since taken similar actions, such as enjoining President Trump’s Alien Enemies Act deportations in 2020. From a 2026 perspective, Goldsmith argues, the CPP order marks the beginning of the Court’s modern active engagement with presidential initiatives via interim orders.

Critique of NYT’s Reporting on the Memos

Goldsmith highlights several legal and institutional issues raised by the CPP memoranda but reserves deeper analysis for a future post. Instead, he focuses on what he describes as tendentious reporting by the New York Times regarding the leaked memos, particularly in its framing of Chief Justice Roberts:

I simply want to flag what I view as unfortunately tendentious reporting about the memoranda, especially but not exclusively about the Chief Justice.

He argues that the NYT’s coverage appears to align more with the reporters’ preconceptions than with the available evidence. Several of Goldsmith’s critiques echo those made by legal scholar Will Baude.

Transparency and Public Record

Goldsmith acknowledges a positive aspect of the NYT’s reporting: the inclusion of the leaked memos themselves, along with other relevant public documents such as court briefs. This transparency, he notes, allows readers to assess the accuracy of the reporting independently.