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We may not have a suspect on the latest SCOTUS leak, but we have a clue, notes @jadler1969: pic.twitter.com/i0xJQlUPte

— Dan McLaughlin (@baseballcrank) April 19, 2026

This suggests the source had access to a non-final or non-circulated version of the Sotomayor memo, but the NYT gives no indication of why that might be.

This morning's New York Times contains a blockbuster scoop by Adam Liptak and Jodi Kantor: Internal memos from the Supreme Court discussing whether to stay the Obama Administration's Clean Power Plan. The NYT has published a narrative story, a chronology of the memos, a list of "takeaways," and the documents themselves.

The documents confirm what a few of us suggested at the time: The Court's majority was concerned that, without a stay, the Environmental Protection Agency would get away with imposing unlawful regulatory burdens on electric utilities, as has occurred with the mercury regulations held unlawful by the Court in Michigan v. EPA.

As a memo by the Chief Justice notes, the EPA had crowed that the Court's Michigan decision was effectively irrelevant because utilities had been forced to spend billions of dollars to comply while waiting for the litigation to resolve, and there were reasons to fear history would repeat itself. As the Chief Justice wrote in one memo:

Past experience makes the case for irreparable harm: On June 29 2015 we ruled that the EPA's Mercury and Air Toxics Standards violated the Clean Air Act See Michigan v EPA, 135 S. Ct 2699. One day later the EPA announced that it was confident it was still on track to reduce the targeted pollutants in part because the majority of power plants are already in compliance or well on their way to compliance Janet McCabe Acting Asst Admin for Office of Air and Radiation In Perspective: the Supreme Court's Mercury and Air Toxics Rule Decision In other words the absence of stay allowed the agency to effectively implement an important program we held to be contrary to law

While the posture is different, the Chief Justice's concerns are in line with those that prompted to Supreme Court to make pre-enforcement review of agency regulations the default presumption in 1967's Abbott Labs trilogy: Firms should not be forced to make substantial (and largely unrecoverable) investments to comply with regulations that may not be lawful exercises of agency authority.

The memos also reveal that the Chief Justice, if not the Court's entire conservative wing, understood the "major questions doctrine" as a thing, highlighting what the Court had held in UARG v. EPA--another case invalidating EPA regulations governing greenhouse gas emissions. Recall that the Chief also highlighted this UARG language in his King v. Burwell opinion. Again, from the Chief's initial memo:

[The EPA's] interpretation of §7411 represents a new approach to the statute. Past rules under $ 7411(d) have contemplated that utilities could comply with the articulated "best system of emission reduction" solely through installation of control technologies (e.g. , scrubbers)-which seem to fit more comfortably within the statutory phrase. As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a "long-extant statute" to "bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization." Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014).

The NYT obtained responsive memos from Justices Breyer, Kagan, and Sotomayor, and a memos supporting the Chief's position from Justice Alito and, pivotally, Justice Kennedy. The memos make clear that, post-UARG, the conservative were very wary of efforts by the EPA to aggrandize its own authority in pursuit of greenhouse gas emission reductions. The conservative justices did not want judicial review of agency action to be irrelevant.

read more:

https://reason.com/volokh/2026/04/18/leaked-supreme-court-memos-reveal-why-court-stayed-clean-power-plan-setting-important-shadow-docket-precedent-in-the-process/