It has been about a month since the end of the term, and Joan Biskupic has an exclusive report on the deliberations behind Moyle v. United States. Kudos to Joan for getting a scoop, which has been a rarity in recent years. She hints at a possible “series,” so perhaps we can expect Part II soon?
As always, it’s important to approach SCOTUS reporting with caution. While we can assume that Biskupic accurately relayed the information she received, it’s also critical to recognize that the leaks she received were likely intended to serve specific interests. In Washington, D.C., information is power, and those who control it do so to achieve their goals. It’s worth noting that President Biden managed to keep his decision to step down from the race a secret until the last minute, showcasing the power of secrecy in D.C.
For a recap of Moyle, you can read my series of posts (1, 2, 3, 4, 5, 6, 7).
First, Biskupic’s sources for this series are described as “CNN sources inside and outside the court with knowledge of the deliberations.”
It appears that the information Biskupic received may have gone through multiple channels before reaching her, possibly resulting in double- or triple-hearsay. This highlights the leaking nature of the Supreme Court, with Chief Justice Roberts potentially needing to address this issue.
Second, Biskupic reveals that the vote on the stay in January was 6-3.
Justice Barrett’s vote was pivotal, initially siding with Idaho’s arguments but later changing her mind. The oral arguments played a significant role in this change.
Third, the change in the case’s direction was influenced by misgivings among key conservatives and leverage from liberal justices.
Fourth, there was no clear majority opinion at the conference, leading Chief Justice Roberts to break the usual protocol and not assign the opinion to anyone.
Instead, it appears that Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett jointly wrote the opinion, while trying to maintain the support of Justices Sotomayor and Kagan.
Fifth, negotiations among the justices were crucial, with Roberts-Kavanaugh-Barrett needing to keep Kagan and Sotomayor on board. Ultimately, Kagan and Sotomayor agreed with only part of the majority opinion.
Optics are important. Biskupic shares that negotiations led to a compromise decision regarding the Idaho law, with Barrett playing a pivotal role. Barrett reversed her stance, appearing open-minded and skeptical of claims from red-state AGs. The conservative justices, Alito, Gorsuch, and Thomas, remained steadfast in their opposition, while the liberals negotiated for a different outcome. The internal debate showcased a fracture within the court, with differing opinions on how to proceed. The actions of the justices, particularly Barrett and Kavanaugh, were closely scrutinized, revealing insights into their decision-making processes.
Her Moyle concurrence expresses regret over granting certiorari before judgment and a stay, not only because of the changed facts on the grounds but also because the Court accelerated the process unnecessarily. She appears to be frustrated with Idaho for what she perceives as an exaggerated justification for the stay.
This closely aligns with what Biskupic has previously written. It is worth noting that much of the insider information Biskupic obtains from her sources can often be deduced by closely examining the Court’s docket. I personally do not have access to any inside information and prefer to speculate freely, as my readers are aware.
I sometimes speculate whether Biskupic begins with well-informed guesses, presents them as insider information, and then seeks validation or comments from her sources based on these supposed leaks. This could explain the flow of information.
Lastly, Biskupic references Kagan’s statements at the Ninth Circuit Conference.
During a comprehensive discussion at a legal conference in Sacramento, liberal Justice Elena Kagan suggested that the Court may have learned a valuable lesson from the Idaho case: “And that may be … for us to sort of say as to some of these emergency petitions, ‘No, too soon, too early. Let the process play out.'”
In hindsight, Kagan’s comment could be interpreted as a mix of reflective and triumphant.
Could you please rewrite this text?
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