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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.
Some justices also worried that if the request were rejected, the high court would appear to be unconcerned about people getting sick from the coronavirus.
As liberal justices were again losing the argument, they wanted to offer some signal to the New York challengers that they could keep making their case in a lower court even as the Supreme Court ruled against them.
The Chief Justice wanted to avoid a dissent. So he added the single sentence to mollify the liberals:. Roberts resisted, CNN has learned.
But the chief justice had an interest in tamping down the tensions and agreed to a modest compromise that sent the signal the liberals sought in the court's order and ensured that the challengers were not prevented from pressing ahead.
First, Roberts refused to use Zoom, even for internal meetings. Roberts' power over their internal operations increased, too, as the justices were relegated to telephone and email communications.
The court declined to use any Zoom-like option for its meetings, according to sources, so for the past four months the justices have not seen one another, even virtually.
And Roberts also decided on the format, based on the approach used by the D. That decision caused some internal grumbling, CNN has learned, about the format and over how much time each justice would get to question a lawyer.
Roberts ended up allowing each justice three minutes. Roberts carefully outlined the timing for the advocates and justices who would be connected by telephone.
The plan was similar to an arrangement used a week earlier by a US appeals court in Washington for a nine-judge hearing. The chief justice thought there would even be sufficient time after justices had taken their turns for a round of open questioning.
For that final round, he said, if anyone wanted to ask a question, he or she could try to break in. He encouraged them to be brief. The chief recognized that several justices might jump in at once.
If that happened, he said, he would call on one of them to speak. If he mistakenly called on a justice who was not trying to break in, he had a fix for his colleagues: Try to ask a question anyway.
This final leak does not make Roberts look powerful. It makes him look petty, and unconcerned for his colleagues. He made these decisions unilaterally, without taking into consideration the views of the other Justices.
I suspect some of the leaks come from the Justices themselves; for example, the grumbling about the format for oral arguments.
These topics seem much safer to carp about, and do not concern internal case deliberations. The leaks about the cases may come from Justices, or they may come from law clerks authorized to talk by the Justices.
And the tenor of the leaks this term are all consistent with a great and powerful Chief Justice—like Oz! The Public. Resource leak suggests Roberts can persuade colleagues to flip.
The Second Amendment leak suggests that Roberts played Kavanaugh. And the Public Charge leak suggests Roberts is willing to throw crumbs to his liberal colleagues when he is ready to.
We all find these leaks scintillating. Indeed, I speculated on possible leaks after Bostock. But they need to stop.
These internal deliberations should remain private. Charles Oliver John Stossel Jacob Sullum Eric Boehm No one has fought harder to keep kids out of the classroom than teachers unions.
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:. The Ramos development did not change the outcome or timing of the LGBTQ decision, but Gorsuch's leading role in the Ramos case was enough to fuel more questions for those searching for clues to which justice was writing the momentous LGBTQ decision.
The six-justice majority held to its view that Title VII covered gay and transgender workers without exception. None of the liberal justices nor Roberts was writing a separate opinion, as often happens in contentious cases.
Here, the majority would speak with one voice: Gorsuch's. Part II reflects a similar narrative in Part I: the initial assignment was set at conference, and did not change.
For some reason, the Justices must be especially sensitive about changing their votes. I don't know why.
Justices, like all people, are fallible. Justice Jackson aptly observed, "We are not final because we are infallible, but we are infallible only because we are final.
He was indecisive! He lacked backbone! He was affected by outside forces! No, a Justice cannot suffer slings and arrows of outrageous tweets.
Therefore, the narrative has become one of steadfast resolve—everything was decided at conference, and only the wrinkles were smoothed out.
My prediction for Part III? John Roberts will look like an institutionalist in June Medical for standing by precedent, and setting aside the Louisiana abortion law.
Both of these efforts of rampant speculation would be consistent with Kagan's modus operandi. And Part IV? They worked hard to vote against Trump on paper, but in reality were closer to the dissenters.
I have a essay on that issue that will be published in National Review on Wednesday morning. Charles Oliver John Stossel Jacob Sullum Eric Boehm No one has fought harder to keep kids out of the classroom than teachers unions.
Robby Soave Election The justices declined to intervene on behalf of Republicans who challenged absentee voting in Pennsylvania.
But he never left his house. The governor's latest order dials up restrictions on whole swaths of California's economy in an effort to prevent hospitals from being overwhelmed.
Christian Britschgi Search for:. Email Address.