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Roberts' June decision saving the Obama-era Deferred Action for Childhood Arrivals program surprised advocates on both sides and even took some colleagues aback when he had first cast his vote many months earlier in private session, sources told CNN.
He put his cards on the table soon after November oral arguments in the case and did not waver, sources told CNN. Roberts believed the administration had not sufficiently justified the rescission of the program benefiting some , young people and had then developed after-the-fact rationalizations.
This seems like a Pro-Roberts leak. It rebuffs the charge from last term with the Census case, that he changed his vote at the last minute.
Don't forget that there was a full Court press on the Chief to consider how rescinding DACA would effect health-care workers during the pandemic.
That means it took him nearly four months to prepare it. He was distracted a bit with the impeachment trial. But by the time Covid concerns were at the fore, Roberts was already writing an opinion that would protect DACA beneficiaries for now.
He finished his first draft in late March. Three of the liberals responded enthusiastically to the draft opinion, CNN has learned, and asked for only minor changes.
The specifics were not nearly as important as the outcome. Though if the progressives held together, they could have created a split that would have left DACA in place without a single rationale.
And that fractured ruling would have made it harder for future DACA challenges to proceed on remand. I wonder if the Chief would have retaliated from such a plurality by flipping sides?
Does he demand obedience if anyone threatens to write separately? In the end, the troika was willing to don the proverbial paper bag.
The fourth, Justice Sonia Sotomayor, held off somewhat. She said she would join Roberts on much of the judgment but expressed dismay that the chief had foreclosed a possible equal protection violation based on Trump's racist comments about Mexican immigrants.
She soon sent around a draft opinion concurring in part and dissenting in part. That case split Roberts had generally supported Trump's immigration policies, and in had privately voted against a related program for parents, rather than children, who had come to the US without papers, sources said.
That case, United States v. Texas, produced a vote behind the scenes, after the death of Justice Antonin Scalia, and no resolution on the merits.
I had long suspected this vote, but now it is more-or-less confirmed. If Roberts still holds these view who knows?
Morever, the reliance interests at play in the Texas case are different. There is no injunction. And Jonathan Adler observed that Roberts does not like injunctions.
This case would appeal from a motion for summary judgment. Stay tuned. Biskupic provides insights into a fairly minor case on the Court's docket: Georgia v.
Org Inc. The Court held that annotations to the Georgia Code could not be copyrighted. The vote in this case was very unusual.
Justice Ginsburg wrote a separate dissent, which Justice Breyer joined in full. At the time, there was some speculation that Justice Thomas lost the majority opinion, and that Chief Justice Roberts flipped his dissent to a majority opinion.
Biskupic confirms this scuttlebutt:. Roberts' winning streak extended to a Georgia copyright dilemma, heard in December, when he was able to turn his dissenting opinion into the prevailing view during the drafting process.
He captured the majority from Thomas, who had initially taken control of the case once votes were cast in their private session after oral arguments.
The Georgia case decided in April, testing whether a state can copyright its annotated legal code, was not a high-profile one. But it offered an example of the rare but consequential vote-shifting that can occur behind the scenes and make a difference in the outcome of a case and law nationwide.
The court ruled that federal copyright protections do not cover annotations in a state's code, based on the general principle, Roberts wrote, "that no one can own the law.
Biskupic does not tell us who flipped. My money is on Kagan. This seemed like a prudent move to make the Chief feel more powerful on a case that didn't really matter.
In any event, another pro-Roberts leak. Biskupic also provides some insights into the Court's Second Amendment cases this term. That opinion held the controversy was moot.
Biskupic reveals that Kavanaugh wrote this opinion, but not by himself. CNN has learned that resolution of that case took many twists and multiple draft opinions.
Whoever leaked this fact was trying to make Roberts look powerful, and Kavanaugh look weak. And that "guided by" line looks even worse in light of Kavanaugh's separate concurrence:.
Kavanaugh also wrote a separate statement—this one he signed—suggesting it was time for the justices to resolve conflicting interpretations of Second Amendment rights.
Challenges to other firearms regulations were pending and conservatives who had wanted to clarify the scope of the Second Amendment had to consider whether to bring the issue back to the justices.
The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
At the time , I read Kavanaugh's concurrence as a signal that there were the votes to grant another Second Amendment case.
Kavanaugh is savvy enough, and would not have written what he wrote unless he thought the Court would pick up another case. I was optimistic.
In hindsight, Kavanaugh was wrong. Biskupic reports that at the conference, Roberts signaled that he would vote to uphold the gun control laws:.
Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations.
As a result, the justices in June denied several petitions regarding Second Amendment rights. It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in and voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.
In mid-June, the high court turned down petitions from 10 challenges to state laws limiting the availability of firearms and when they can be carried in public.
Justice Thomas dissented from the denial of cert. Justice Kavanaugh joined part of Thomas's dissent.
Kavanaugh thought there were four votes to grant cert, and five votes to reverse. He was wrong. There may be some built-up resentment.
In January, the same five-justice Roberts majority permitted the administration to proceed with a new income-related test for immigrants seeking green cards.
The "public charge" rule denies permanent legal status to those applicants who even occasionally apply for Medicaid, food stamps or certain other public assistance.
There were no recorded dissents. But both orders included the same concluding sentence:. Of course, this sentence states the obvious.
The parties can always seek relief in the District Court. I am not aware of whether that relief was granted. Three months later, amid a new dilemma over the rules arising from the Covid virus, Roberts took the lead against immigrant interests yet mollified liberals poised to dissent publicly, CNN has learned….
According to sources, liberal justices believed the pandemic had transformed the situation and wanted the administration to clarify its rules to help places like New York hit hard by the virus in the spring.
Roberts was unmoved and believed administration guidance was clear that immigrants could obtain Covid care without consequence to their green-card applications.
Other conservative justices agreed. In other words, there were still five votes to leave the stay in place.
The liberals considered whether to publicly dissent:. Liberal justices wrestled with how far to go with their contrary view and whether to publicly dissent, CNN has learned from inside accounts.
Kagan contended that discrimination against a gay man because he loved other men, not women, necessarily, was "because of sex.
During oral arguments in Stephens's case, Justice Gorsuch seemed much more conflicted. He speculated about what a court should do "when a case is really close, really close.
Gorsuch's approach typically leads him to narrower constructions of individual civil rights and liberties. But as he considered Title VII, his approach was leading to an opposite, more expansive result.
While Gorsuch expressed concern at oral arguments about "massive social upheaval" if the justices ruled in favor of broad LGBTQ worker protections, he has previously asserted that a true textualist should not concentrate on whether an outcome would be good or bad.
Pay attention to that phrase,"true textualist. A faux textualist? And the focus on "previously asserted" is definitely replaying past debates.
Here, I think Biskupic is voicing Kagan's internal pleas to Gorsuch. This charge is an attack on the oversized ego of an overly prideful man.
Calling Gorsuch a fake textualist is like calling Marty McFly chicken. He can't back down. Elena: Come on Neil, you've wrote in your bestselling book that a "true textualist should not concentrate on whether an outcome would be good or bad.
Later, I think Biskupic was voicing Kagan's attempt to minimize her own role: Gorsuch didn't need Kagan's help! Gorsuch exudes confidence regarding his textualist method and would easily have found arguments along those lines in the filings supporting the gay and transgender employees, without any guidance from Kagan.
Yet she was in touch with Gorsuch during deliberations, sources told CNN. And of all the four justices on the left, Kagan seems most able to persuade Roberts.
Despite holding different ideologies and politics, their legal experience and instincts are similar, and they appear to enjoy a mutual respect.
The "exudes confidence" line is a bit of a backhanded compliment. I do think that Gorsuch is far too haughty and certain in his approach to law.
But then again, Biskupic writes Gorsuch "would easily" have reached the conclusion he did. This line resembles the "expected to" line above.
I think the same person who told Biskupic the "expected to" line also said "would easily. Here, I think team Kagan was leaking.
As the recently completed session demonstrated, Roberts is the conservative most apt to break with his brethren and join the four-justice liberal wing.
But in the gay and transgender disputes, it was Gorsuch, writing for the majority, who played the central role as author of the opinion.
This last bit sounds like a Gorsuch-ally talking. Biskupic's voice goes back and forth. If you pay close attention, you can hear it.
Fourth , Biskupic tells us that Gorsuch's draft was finished in February. Kagan joined right away. The other three progressives soon fell in line.
They were willing to do a paper bag in Obergefell. Bostock was an easy lift. Gorsuch finished a first draft for colleagues to read in early February , CNN has learned.
Kagan told Gorsuch and the others she was signing on straightaway. Soon after, the other liberals—Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor—joined Gorsuch's approach and conclusions in the three cases combined under the title of Bostock v.
Clayton County. Roberts was in at the same time. That rapid sequence has not been previously reported. The quick agreement was a reflection of collaboration underway and an indication that the majority that had locked in soon after oral arguments was holding.
Questions of religious liberty were similarly handled by looking ahead, but with a firmer admonition. The latter law prohibiting the federal government from substantially burdening a person's exercise of religion, Gorsuch asserted, could supersede Title VII's prohibition on sex discrimination in certain cases.
That may have given liberal justices pause. But they were not going to press for change. They had won a ruling that even a year earlier had seemed impossible.
Fifth , Biskupic adds that Justice Alito's vituperative dissents were not successful at moving Justice Gorsuch. On the other side, a series of scathing draft dissents by conservative Justice Samuel Alito that attacked Gorsuch's logic failed to dissuade any of the six justices in the majority, who did not waver through the final months of internal deliberations…..
During the drafting process, individual justices may break off to write separate concurring statements, or—in rare instances—a justice might switch sides altogether, persuaded by another person's writing.
Here, nobody was swayed despite forceful arguments from the dissenters, according to CNN's reporting. Alito was infuriated by the turn of events and immediately after seeing Gorsuch's draft opinion, according to sources familiar with the matter, alerted his colleagues that he would be writing a dissent.
Alito finished his dissent in April from home. Then Alito and Gorsuch began to respond to each other:. Alito, meanwhile, was unyielding.
He believed Gorsuch's stance contradicted his own oft-expressed view that judges should avoid policy decisions.
Alito finished his first draft after the justices had retreated to their homes because of the Covid pandemic and sent around copies of his dissenting opinion in April, CNN has learned.
The two sides were thus joined as Gorsuch and Alito began to face off through continuous drafting. Alito was especially angered by Gorsuch's view that he was taking a modest, humble approach to the law, as his dissenting opinion made clear.
Sixth , Biskupic writes that Kavanaugh was unwilling to join Alito's strident dissent. That was my speculation :. Thomas signed on to Alito's dissenting opinion.
Kavanaugh, however, was uneasy, according to the sources. In the end, he separated himself from Alito's caustic tone and wrote his own dissenting statement.
Seventh , we learn that Justice Thomas tried to informally coax his conservative colleague. Congress could change the law if it thought additional protections were warranted, they contended.
Thomas, the senior member of that conservative team, had tried subtly to persuade Gorsuch that he was not being true to conservative textualism , but to no avail.
Look at the emphasized line: "not being true to conservative textualism. This conversation is very one-sided. Put the pieces together. It isn't hard.
Whoever gave the line about "true textualism" above gave the line about "true to conservative textualism" here. Eighth , Biskupic confirms my intuition: the Wall Street Journal and others were acting on a leak.
But in this high-stakes case, word that Gorsuch and Roberts had voted with the four justices on the left began leaking out in November, a rare breach of confidentiality during the drafting process at the secrecy-obsessed institution.
Some spreading the word plainly hoped to jab the conservatives, perhaps even pressure them to change. They told me that I should not be criticize people in my own camp based on mere speculation.
I was right. And I have no problem criticizing those I agree with. I'm not chicken. Biskupic also provides some insight into how unreliable leaks are.
In short, people on the outside have incomplete information, that may be out of date. Also, those leaking information may not provide a full account—either because they do not know more, or cannot disclose more.
In other words, those attempting to nudge the Justices may be fighting a battle that was already lost. That seems to have been the case with Bostock.
By the time the editorials were written in November, the die had already been cast on sexual orientation; it was perhaps in flux on gender identity.
The most substantive part of the court's decision-making process comes as justices crafting the opinions for the majority and the dissent work out their legal rationales in drafts.
The bottom-line judgment in any case is important, but it is the legal reasoning that establishes the rules for future related disputes. As justices develop their rationales, they send around drafts for the other eight justices to see.
Outsiders are often in the dark about internal alliances, motivations, and the twists and turns that lead to a nationwide ruling. The justices say their final, written opinion should speak for itself….
Few people beyond the court's walls really knew what was transpiring, yet those early whispers regarding votes and internal debate held some truth.
While the justices sparred behind the scenes, advocates on both sides of LGBTQ issues were growing apprehensive about what was happening with the cases.
After the conservative news reports in late , little was leaking. During the October sitting, eight cases were argued, including Bostock and Ramos.
Malvo, which involved juvenile life without parole, was also argued in October. But that case dismissed from the docket.
That left seven cases. On April 20, Justice Gorsuch wrote the majority opinion in Ramos. That opinion was very fractured. What happened? Biskupic confirms that scuttlebutt.
Meanwhile, a late switch in an unrelated case that also involved Gorsuch confounded lawyers and journalists, who were watching for signs of what might be happening in the LGBTQ disputes.
Gorsuch became the author of the court's opinion in that case only after justices had worked out their legal rationales months later. Biskupic doesn't explain who flipped in Ramos.
Again, this leak is designed to address concerns that Gorsuch flipped. He was rock solid from the get-go!
This paragraph is written in the voice of Team Neil:.