On Thursday, in what some perceived as a slap at conservative Supreme Court Justice Amy Coney Barrett, who for the first time authored the court’s majority opinion in a case, the intellectual leader of the liberal wing of the Court, Justice Stephen Breyer, eschewed the normal wording beginning a dissent, “I respectfully dissent,” and instead wrote, “I dissent.”
The 7-2 decision in U.S. Fish and Wildlife Service v. Sierra Club, with the six nominally conservative judges (Samuel Alito, Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas) joined by liberal justice Elena Kagan, revolved around a FOIA request the environmental group Sierra Club filed for “draft biological opinions” that environmental officials produced in 2013 for the EPA. The Court ruled that the federal government does not have to fully disclose certain draft documents because they were covered by FOIA’s “deliberative process” privilege. That privilege permits the government to withhold documents the agency has created when crafting a new policy.
Barrett wrote that the draft opinions “were not last because they were final; they were last because they died on the vine.”
Prior to the Court’s decision, as Law & Crime noted, “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.”
After the Obama EPA denied access to documents regarding cooling water intake structures harmful to endangered marine animals, the Sierra Club sued and won at both the district and appellate court levels before the case reached the Supreme Court.
Barrett wrote that the deliberate process privilege “distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision, which are not.”
Documents are “predecisional” if they are generated before the agency’s final decision on the matter, and they are “deliberative” if they were prepared to help the agency formulate its decision. There is considerable overlap between these two prongs because a document cannot be deliberative unless it is predecisional.
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. 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.
Sierra Club contends, though, that while these documents may have been called “drafts,” they were actually intended 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.
“The ‘respectful’ dissent as we know it today emerged on the Warren Court in 1957, especially in the opinions of Charles Whittaker, followed closely by other justices,” Slate noted in 2015. “As with its immediate predecessors, ‘The respectful dissent is the dominant speech act of the Roberts Court,’ being used in 70 percent of dissents. The remainder either have no dissenting speech act whatsoever, or, more rarely, contain what Kulawik terms ‘assertive dissents,’ which ‘withhold respect where convention requires it.'”
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