Rights and Wrongs of Chief Justice Roberts' Year-End Report on the Judiciary

Roberts identifies genuine problems, but little in the way of good solutions. He also sometimes overlooks ways in which the Supreme Court is partly responsible for the challenges the judiciary faces.

Chief Justice John Roberts. (SCOTUS)

 

Supreme Court Chief Justice John Roberts' 2024 Year End Report on the Federal Judiciary raises several genuinely serious issues that threaten the judiciary. But it offers little in the way of good solutions. In some cases, Roberts also overlooks ways in which the Supreme Court's own actions have helped exacerbate the problems he rightly flags.

Roberts highlights "four areas of illegitimate activity that…. threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments." These are all legitimate issues and the Chief Justice is right to call attention to them. But his analysis of them has some notable shortcomings.

When it comes to violence and intimidation, Roberts rightly condemns the "significant uptick in identified threats at all levels of the judiciary." Sadly, the rise of social media has made it easier to make such threats. Most of the people who make threats likely have little or no intention of acting on them. But it is often difficult to tell for sure, and threats of this kind are still painful and disturbing for those who get them. I know that from personal experience. And, as Roberts also points out, practices that stop short of direct violence, such as "doxxing," can also pose serious dangers.

Unfortunately, Roberts has little in the way of proposals for dealing with these threats. State and federal authorities can increase security for judges, and social media firms could do more to purge threats of violence from their platforms. But it is extremely difficult to truly stamp them out in our modern communications environment.

Moreover, increasing security has its own costs. Unlike the president and some other high-ranking executive officials, most judges live relatively ordinary lives. They aren't constantly accompanied by security guards, their homes are not fortress-like, and so on. Perhaps that will have to change. But living in a perpetual security bubble has serious downsides. I am not sure what the best approach to the threat of violence and intimidation is. Perhaps more security is needed. But I don't know how to strike the right balance between that and allowing judges and their families to live generally normal lives.

When it comes to misinformation, Roberts worries that "[d]isinformation, even if disconnected from any direct attempt to intimidate, also threatens judicial independence… At its most basic level, distortion of the factual or legal basis for a ruling can undermine confidence in the court system." He also complains about public officials "suggesting political bias in the judge's adverse rulings without a credible basis for such allegations."

Roberts is right about this. But, as he recognizes, both elected officials and the general public have a right to debate and criticize court decisions and judges. The line between legitimate criticism and disinformation is often a fuzzy one, and Roberts' report does little to clarify it.

Moreover, in a world of widespread political ignorance, and ubiquitous efforts to exploit it for political gain, I am skeptical that much can be done to reduce the spread of disinformation about contentious judicial decisions or other political issues. I also doubt that the Chief Justice's suggestion of promoting civic education is likely to work. There is no easy solution to the problem of voter ignorance and bias. But I review several possible approaches to mitigating the harm they cause in this article.

I agree with Roberts and other conservatives that much of the criticism of the Supreme Court's "politicization" is unfair and overblown. Among other things, it ignores many important decisions where the Court has ruled against right-wing causes and political leaders. At the same time, however, some of the Court's rulings have left it open to charges of bias and politicization. This is most clear in the case of this year's rulings on presidential immunity and Section 3 disqualification, where the conservative judges largely ignored their own preferred originalist methodology and instead based their decisions on dubious policy and pragmatic considerations, while ignoring weighty considerations of the same type on the other side.

Although I think the justices got these decisions badly wrong, I  believe they were likely motivated by structural concerns about presidential power (in the immunity case) and conflicting state decisions (in the Section 3 case), rather than by narrow partisanship. In the Section 3 case, the conservative justices were, on some key issues, joined by the three liberal ones (though reliance on pragmatic and policy considerations is more consistent with the "living constitution" methodology of the liberals than with the conservatives' originalism).

But I can certainly see how other observers might reach a more cynical interpretation of the conservative justices' motives. Either way, if the justices want to avoid being perceived as political, they could start by being more consistent in sticking to their jurisprudential commitments. Doing so won't put an end to all criticism, or even all unfair accusations. And, obviously, critics who disapprove of originalism as such will (understandably) continue to oppose many of the Court's decisions. But well-informed observers would recognize that the justices are making a serious effort at consistency, and attempting to curb their own policy predilections.

Finally, the Chief Justice is right to call out "threats to defy lawfully entered judgments." Judicial independence - and judicial review - cannot survive for long if government officials can refuse to obey court decisions, and get away with it.

There has been much speculation on precisely who Roberts has in mind here. I suspect there are a number of different culprits, on different sides of the political spectrum. But the biggest elephant in the room is president-elect Donald Trump. After the 2020 election, courts - including in rulings by judges he himself appointed - consistently rejected Trump's bogus claims of electoral fraud. Yet instead accepting these decisions, Trump tried to use a combination of force (instigating and leveraging the January attack on the Capitol), and fraud (the fake elector schemes and other shenanigans) to stay in power.

You can argue this isn't a refusal to obey judicial decisions, because the courts didn't specifically enjoin the particular illegal actions Trump attempted. But if courts consistently reject your claims that you have a legal right to X (here, victory in the election), and you resort to force and fraud to try to take X anyway, that's pretty clearly defiance of judicial rulings.

It is also the case that VP-elect J.D. Vance advocated defiance of judicial rulings in the event courts reject Trump's plans to pack the federal bureaucracy with loyalists:

I think that what Trump should do like if I was giving him one piece of advice, fire every single mid level bureaucrat, Every civil servant in the administrative state, replace them with our people. And when the courts, because you will get taken to court, and then when the courts stop, you stand before the country like Andrew Jackson did and say, the Chief Justice has made his ruling. Now let him enforce it….

Conservative columnist Quin Hillyer highlights the dangers of this view:

The line about defying the Supreme Court was a quote from long-ago President Andrew Jackson, sickeningly justifying what became known as the Trail of Tears that forcibly moved and brutalized 60,000 Native Americans. But completely apart from that terrible context, the defiance itself is unconstitutional lawlessness, undiluted.

Elsewhere, I have explained why "judicial supremacy" on constitutional issues and legal interpretation is constitutionally required, and  justified despite the fact that courts are far from perfect.

Josh Blackman contends Vance didn't really advocate defiance of judicial rulings because, later in the same podcast, he said that "the thing that you can do in the Senate is push the legal boundaries, as far as the Supreme Court will let you take it to basically make it possible for democratically accountable people in the executive, in the legislature to fire mid level, up to high level civil servants." I don't think this genuinely mitigates the statement advocating executive branch defiance of the judiciary. Significantly, Vance doesn't, in this passage, say what should happen if courts rule against the president's plans to "push the legal boundaries." He does, however, address that in the other passage.

Whether the new administration will actually defy judicial rulings remains to be seen. But Trump and Vance's track records create undeniable reasons for concern.

There have also been some left-wing calls for defiance of judicial rulings, and - for those keeping track - I have duly criticized them. But none of the left-wingers advocating such action are as powerful and influential as the incoming president and VP.

As with some of the other issues he raises, Roberts offers little in the way of suggested solutions. Ultimately, obedience to judicial decisions rests in large part on political norms. In the next four years, we may see those norms seriously tested.

In sum, Roberts' report effectively raises several important issues. It is much less effective as a guide to dealing with them.