Supreme Court Memos on Clean Power Plan Stay: Hypocrisy or Legal Nuance?

The release of internal Supreme Court memos regarding the stay of the Clean Power Plan has ignited discussions about potential judicial hypocrisy or the justices’ failure to apply the correct standard of review. Critics claim the memos—particularly those authored by the Chief Justice—contain errors or omissions that went unaddressed by other justices. However, legal scholars William Baude and Richard Re challenge these assertions in their analysis at Divided Argument.

Irreparable Injury: A Misapplied Criticism

Baude and Re address the claim that the Court inadequately considered irreparable injury to the government. They argue this critique conflates two distinct legal doctrines:

• The Court has established that the government faces irreparable injury when its policies are blocked—but this rule applies only when the government is the moving party seeking to lift a lower court order.
• In the Clean Power Plan case, the Obama Administration was not the moving party. Instead, the challengers to the plan were the ones seeking a stay, shifting the legal framework entirely.

The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case. This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party.

Standard of Review: Sensible Application or Overstated Critique?

Another criticism targets the Chief Justice’s memo for allegedly applying the wrong standard of review. Baude and Re counter that the factors cited were drawn from prior cases and the briefing before the Court. They note:

Another criticism is that the Chief Justice's memo clearly applied the wrong standard of review. Here, too, the critics are at best overstating their case. The factors applied by the Chief Justice were sensible ones drawn from prior cases and the briefing before the Court.

Additionally, the dissenting justices did not challenge the standard of review in their internal memos, suggesting the debate over its specifics may be less consequential than critics imply. Baude and Re explain:

And, notably, for all of the internal pushback from the dissenting justices, they did not push back on the standard of review. Perhaps this is because the details of the standard of review do not matter so much. In a somewhat novel case, any relevant substantive points can be channeled into the plausible alternative standards of review as well.

They also highlight ambiguity in the proper standard, noting uncertainty over whether the stay’s authority derived from the All Writs Act, APA Section 705, or another source. Ultimately, they conclude the Court considered what would be expected in such a case.

Internal Memos vs. Judicial Opinions: A Key Distinction

The scholars caution against interpreting these internal memos as if they were public judicial opinions. Drawing from his experience as a judicial clerk, one of the authors emphasizes:

It's a mistake to read these internal memoranda as if they were public judicial opinions, as opposed to memoranda distributed to a specialized audience. My experience as a judicial clerk may not be representative, but I recall memoranda by judges to their colleagues that focused on the issues and questions of immediate concern that did not walk through or spell out all of the relevant considerations, let alone seek to provide guidance to lower courts.

The Court, they argue, applied its normal equitable inquiry, referencing both the general standard for a stay pending appeal and the standard for stays of administrative action.