Chief Justice Roberts (Likely) Ordered The Release Of Cook 30 Minutes Before He Announced It

I have a regular routine for Supreme Court decision days. On one monitor, I have the SCOTUSBlog liveblog. On a second monitor, I have the SupremeCourt.gov opinions page open. I keep Adobe Acrobat ready on a third screen. And the fourth screen is the FantasySCOTUS database, where I immediately score the cases.

Usually SCOTUSBlog announces the case name and the authoring justice a few moments before the PDF link pops up on the website. (Circa 2010, the PDF links were simply the [docketnumber.pdf], so I was able to access some PDFs early by anticipating what cases came down; that practice was changed after I wrote about it.) When a Justice announces a dissent from the bench, we have to wait some time until the next opinion is released.

Today, the release sequence was predictable, until it wasn’t.

At 10:01, SCOTUSBlog announced the majority opinion in Watson. Justice Barrett tends to offer long-ish summaries. At 10:09 SCOTUSBlog announced Justice Kagan’s opinion in Chartie. At 10:15, Amy Howe announced: “We have Slaughter and Cook, both from Roberts.” Both PDFs were posted at that time.  I assumed that Roberts announced from the bench that he wrote the majority opinion in both cases, which is why the files were posted online. But we learn from Mark Walsh’s indispensable reporting that the sequence was different:

Roberts announces that “I have the opinion of the court in two related cases.” This could be the transgender sports cases, but he quickly adds, “I will start with Trump v. Slaughter.”

Even though Roberts had not yet begun announcing the opinion in Cook, that opinion was still posted online immediately, and was distributed to the press room as a bundle.

At this moment, reporters in the Press Room are being handed copies of both Slaughter, about President Donald Trump’s attempt to remove a member of the Federal Trade Commission, and Trump v. Cook, about his efforts to remove a member of the Federal Reserve Board of Governors. In fact, the two lengthy opinions have rubber bands around them.

I cannot recall an instance where a Justice announces two related cases, and both PDFs are posted simultaneously.

For example, on May 28, Justice Barrett had the majority opinion in two related cases, Rutherford v. United States and Fernandez v. United States. SCOTUSBlog announced Fernandez at 9:02 and posted the PDF at that time. The Fernandez dissent referenced Rutherford, which, as a commenter pointed out, “currently does not exist.” At 9:09, SCOTUSBlog announced the judgment in Rutheford, and the PDF came a minute later. This is the usual routine for as long as I can remember.

Indeed, Mark Walsh said that between Roberts’s majority and Sotomayor’s seventeen page dissent, approximately twenty-seven minutes would elapse.

But it will be quite a while before we get to Cook. . . .

Roberts, who has kept his reading glasses on during the dissent, offers no off-the-cuff retorts or rebuttals. He says, “I will now turn to the opinion in Number 25A312, Trump versus Cook.”

It is 10:42, and the rest of the world, including the Press Room, the president, the markets, and the nation, have known the outcome of this case for a good half hour before most of us in the courtroom do (given it was already posted on the court’s website and reported on in places such as SCOTUSblog).

Mark is wise to reference markets. A friend wrote, “Roberts was so spooked out about spooking out the stock market that he kept Cook for himself and then apparently had it released to the public before it was even announced in court.” I believe it.

The Chief wanted to avoid nearly thirty minutes of suspense, while Sotomayor read her dissent, concerning the fate of the Federal Reserve. He remembers well the uncertainty that unfolded during the Obamacare handdown. The markets could have reacted negatively without knowing the fate of Cook. So the Chief Justice (likely) ordered the Court to post the PDFs and release the bundled opinions together. And of course, the Chief will hold birthright citizenship for the last moments of the term to signal to the public how nonpartisan the Court is.

I have finished reading the Slaughter majority, and will have a lot to say in due course. Here, I’ll just offer an initial thought. The Chief Justice is very critical of the Humphrey’s Executor majority, and suggests it was something of a political ruling to clap back at President Roosevelt. Roberts uses that background, at least in part, to justify overruling the decision. I wonder if Roberts had even a moment of cognitive dissonance. Virtually every major ruling he issued–even the timing of Slaughter itself–is based on Roberts’s crude sense of politics. How will Roberts’s political precedents be viewed once he is off the bench? I would wager they’ll be treated with the same dignity that Humphrey’s Executor was afforded. Whatever mishigas the Chief was trying to do with Trump will be forgotten, as well the ill-fated effort by the New Deal Court to thwart FDR.  Roberts’s opinions cannot compare with a ruling like Justice Scalia’s Morrison dissent, which stood the test of time and prevailed.

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