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Breaking Away from Norms and Traditions, Justice Breyer Does Not ‘Respectfully’ Dissent Against Justice Barrett’s First Majority Opinion


The U.S. Supreme Court on Thursday ruled in favor of government secrecy by stopping an environmental nonprofit group from obtaining internal documents prepared by the Environmental Protection Agency (EPA). The case was the first heard by nascent Justice Amy Coney Barrett and is also, coincidentally, her first majority opinion.

The ultimate decision in the long-running case, which began as an anti-transparency effort under the Barack Obama administration, is also notable for two separate reasons that have to do with Supreme Court norms and traditions—or, rather, a divergence from them.

First, the opinion was not unanimous. Traditionally, a new justice authors their first majority opinion with the full backing from the court. Thursday’s 7-2 decision in favor of the government upends that unspoken agreement—perhaps auguring tense relations ahead.

Second, the dissent by Justice Stephen Breyer (which was joined by Justice Sonia Sotomayor), foregoes the staid closing salutation of “I respectfully dissent” in favor of the terse “I dissent,” which is decidedly a sign that the disagreement here is exceptionally sharp.

Stylized as U.S. Fish and Wildlife Service v. Sierra Club, the case concerns whether internal decision-making documents termed “draft opinions” by the EPA are or are not part of a formal process under the Endangered Species Act (ESA). If they are formal processes, then they must be made available to the public under the Freedom of Information Act (FOIA). If they are not part of a formal process, then it’s a matter of agency discretion as to whether or not such drafts can ever be accessed by the public.

The Obama administration—and then the Donald Trump administration—claimed that the documents were not formal processes because those opinions, the government claimed, were ultimately shelved. The Sierra Club and the American Civil Liberties Union (ACLU) argued the opposite. They claimed the documents were simply labeled drafts in order to keep them secret and noted that the documents were forwarded to multiple staff, separate agencies and that various real world actions were taken based on the analysis contained therein. The high court ruled in favor of the government.

The facts of the case concern rules governing the regulation of cooling water intake structures that are harmful to endangered marine animals. The Sierra Club sought information on the process leading up to the creation of the rule in question but was denied access by Obama’s EPA. The activists sued and won in both district and appellate court but the conservative majority—with a not atypical assist from Justice Elena Kagan—overturned those decisions.

“It is not always self-evident whether a document represents an agency’s final decision, but one thing is clear: A document is not final solely because nothing else follows it,” the heart of the opinion reads. “Sometimes a proposal dies on the vine. That happens in deliberations—some ideas are discarded or simply languish. Yet documents discussing such dead-end ideas can hardly be described as reflecting the agency’s chosen course. What matters, then, is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.”

While Barrett later argues that this “is not to say that the label ‘draft’ is determinative,” the opinion actually stakes out exactly that conclusion based on the notion that actual and real world consequences are overshadowed by “legal” decisions committed to the Federal Register—the official journal of the U.S. government where agency rules and proposed rules are memorialized.

The opinion explains at length:

Sierra Club contends, though, that while these documents may have been called “drafts,” they were actually in-tended to give the EPA a sneak peek at a conclusion that the Services had already reached and were unwilling to change. And Sierra Club says that the EPA responded accordingly: Once the EPA knew that a jeopardy opinion was coming, it revised its proposed rule. Sierra Club insists that the draft opinions thus had an “operative effect” on the EPA and must be treated as final under our precedent.

Sierra Club misunderstands our precedent. While we have identified a decision’s “real operative effect” as an indication of its finality, that reference is to the legal, not practical, consequences that flow from an agency’s action.

In other words, the high court is actually just taking the agency’s word for whether a draft is actually a draft by creating the above rule that dispenses with an “effects-based” understanding of whether or not the public has a right to access public documents.

But, as the dissent points out, the majority opinion is also inventing what the terms “final” and “legal” mean here in order to maintain a regime of secrecy.

“[L]iterally speaking, a Draft Biological Opinion is a ‘final’ document with respect to its content,” Breyer notes.

“If further deliberation about the draft’s content is likely, the document is not a Draft Biological Opinion,” the somewhat sarcastic dissent continues—in an effort to point out logical inconsistencies with the majority’s reasoning. “It is a Draft of a Draft. I recognize that in principle [an agency] might change its mind about the content of even the most final of Draft Biological Opinions. It might then prepare a new Draft Biological Opinion. But, in principle, [an agency] could also change its mind about a Final Biological Opinion, withdrawing a Final Biological Opinion already issued and substituting a new one in its place.”

Breyer goes on to explain that so-called “draft” opinions are also full of cognizable legal ramifications during the administrative process.

“[L]egal consequences flow from [an agency’s] completion of a Draft Biological Opinion,” the dissent notes. “The [U.S. Fish and Wildlife Services’] regulations state that ‘[i]f requested, the Service shall make available to the Federal agency [i.e., the EPA] the draft biological opinion for the purpose of analyzing the reasonable and prudent alternatives.’ Once the Draft Biological Opinion is under review at the EPA, [an agency] may not issue a Final Biological Opinion prior to the specified deadline. Moreover, as explained, Draft Biological Opinions, like Final Biological Opinions, limit the EPA’s set of available options.”

[image via Jim Lo Scalzo-Pool/Getty Images]

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