A Window Into Chief Justice Roberts’s Mind

After you reach a certain age, the novelty of New Year’s Eve tends to wear off. Indeed, one of the few things I look forward to on December 31 is the Chief Justice’s year-end report. They provide some insights into how John Roberts views the world. I’ve been writing about them since 2009. As best as I can recall, the 2024 year-end report is the most intense Robertsgram I’ve read. Let’s walk through it.

First, the theme of the report is the importance of judicial independence. But the subtext is that other branches, and critics, are unduly encroaching on the judiciary. Roberts tells a story that stretches from King George III to the Articles of Confederation to Article III to Federalist No. 78 to Marbury. (I appreciate that Roberts gives Hamilton credit for “presag[ing] Marshall’s analysis in Marbury.) Roberts explains why judicial independence is so important, quoting two jurists with very different worldviews:

One reason judicial review has endured and served us well lies in yet another insight from Chief Justice Rehnquist, articu-lated in his 2004 Year End Report: “The Constitution protects judicial independence not to benefit judges, but to promote the rule of law.” Or, as Justice Kennedy put it, “Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.”

I can see why Roberts would quote both Rehnquist and Kennedy for the purposes of optics. He does like balance. But remember, the former jurist dissented in Casey and the latter jurist wrote the controlling opinion.

What must Justice Kennedy do with his judicial independence? Write stuff like this:

Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.

Our obligation is to define the liberty of all, not to mandate our own moral code.

Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman’s liberty to determine whether to carry her pregnancy to full term.

To quote Justice Scalia, “the Imperial Judiciary Lives.”  Then again, when Roberts had the opportunity to overrule Roe, he blinked. I think Roberts’s hard right turn last term can be traced back to his Dobbs concurrence. The Chief does not want to be sidelined on his own Court.

Second, Roberts offers this account of the Bank of the United States debate and McCulloch v. Maryland:

In truth, some tension between the branches of the government is inevitable and criticism of judicial interpretations of the people’s laws is as old as the Republic itself. In Hamilton’s and Jefferson’s time, the debate was framed by pitting those who believed that the government’s powers extended only to those specifically enumerated in the document against those who found in it more expansive powers. Today we often use terms like originalism and pragmatism to describe these differences of opinion.

Huh? I don’t even know where to start with this passage. Would anyone characterize the debate between Hamilton and Jefferson/Madison as a debate between originalism and pragmatism? I think both sides offered careful accounts of the text of the Necessary and Proper Clause. Perhaps Hamilton’s approach was a bit more consequentialist, in that it considered the needs of the growing Republic. But he was an originalist. And Chief Justice Marshall’s decision in McCulloch largely cribbed from Hamilton’s defense of the bank bill. Marshall too was being originalist in that sense, although I would admit more pragmatism seeps through that decision. But Roberts wasn’t talking about McCulloch, decided three decades after Washington approved the national bank. I’m not sure if this passage is meant as some sort of attack on originalism, or defense of pragmatism. It left me scratching my head. This is not one of Roberts’s finer arguments.

Third, Roberts writes:

The political branches sometimes inquire into judicial philosophy when considering nominees for the federal courts. But the oath—and the duties that follow—are the same regardless of the President who nominated and the Senate that confirmed every new Article III judge.

“Sometimes”? Always! From the beginning, Presidents considered judicial philosophies. Compare the Federalist Judges to the Jeffersonian Judges. Roberts surely knows this from his experience in the Reagan White House.

Fourth, Roberts observes:

Since the beginning of the Republic, the rulings of judges have shaped the Nation’s development and checked the excesses of the other branches.

“Checked the excesses”? As I recall the Chief’s Obergefell dissent, it is the excesses of the Court that have checked the other branches.

Fifth, Roberts gets to the core of his report:

Unfortunately, not all actors engage in “in-formed criticism” or anything remotely resembling it. I feel compelled to address four areas of illegitimate activity that, in my view, do 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.

Roberts relates that the number of threats to judges have increased significantly in recent years. I have written about the threats against Judge Kacsmaryk. The U.S. Marshall service keeps a chart that connects these threats to specific tweets. Roberts mentions that Judges have had to wear bulletproof vets, which Justice Barrett has alluded to. And Roberts turns to doxing:

Doxing also can prompt visits to the judge’s home, whether by a group of protestors or, worse, an unstable individual carrying a cache of weapons. Both types of activity have occurred in recent years in the vicinity of the Nation’s capital. Activist groups intent on harassing judges have gone so far as to offer financial incentives for posting the location of certain judicial officers.

Of course, this is a clear reference to the protests outside the Justices’s homes during the Dobbs case, and the attempted assassination of Justice Kavanaugh. (By the way, it looks like the Defendant in that case is going to trial in summer 2025.)

But this criticism is not limited to randos on the internet. Roberts focuses on unnamed “public officials” who have attacked unnamed judges.

Public officials, too, regrettably have engaged in recent attempts to intimidate judges—for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations. Within the past year we also have seen the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment. Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed. Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.

Roberts does not name names, but I have to think the female district court judge he mentioned is Aileen Cannon. Then again, have any bar associations defended her?

Sixth, Roberts veers into the category of “disinformation.”

Disinformation, even if disconnected from any direct attempt to intimidate, also threatens judicial independence. This can take several forms. At its most basic level, distortion of the factual or legal basis for a ruling can under-mine confidence in the court system.

Disinformation, huh? Sounds like protected speech to me.

Seventh, Roberts references some unnamed foreign adversaries who have affected the Courts.

But much more is needed—and on a coor-dinated, national scale—not only to counter traditional disinformation, but also to confront a new and growing concern from abroad. In re-cent years, hostile foreign state actors have ac-celerated their efforts to attack all branches of our government, including the judiciary. In some instances, these outside agents feed false information into the marketplace of ideas. For example, bots distort judicial decisions, using fake or exaggerated narratives to foment discord within our democracy. In other cases, hackers steal information—often confidential and highly sensitive—for nefarious purposes, sometimes for private benefit and other times for the use of state actors themselves. Either way, because these actors distort our judicial system in ways that compromise the public’s confidence in our processes and outcomes, we must as a Nation publicize the risks and take all appropriate measures to stop them.

It isn’t clear if China has hacked into judicial systems, or just spread some memes. (It was just announced that China hacked into Treasury systems.) After the Dobbs leak, I speculated whether it could have been a hack. Roberts knows more than he is letting on. Speaking of China, if the threat of foreign hacking is on the Chief’s mind, I can predict how he will approach the TikTok case. I would wager that TikTok is blocked on court devices.

Eighth, Roberts turns to what he sees as the greatest threat to judicial independence: defiance.

The final threat to judicial independence is defiance of judgments lawfully entered by courts of competent jurisdiction. As noted above, two of the major pillars of our Republic—separation of powers and judicial re-view—create an inevitable tension between the branches of our government. Hamilton foresaw, and Chief Justice Marshall confirmed, the role of the judicial branch to say what the law is. But judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees.

I recently had occasion to re-read Ex parte Merryman. Chief Justice Taney would be better to cite than Chief Justice Marshall, but optics. Taney explained that the Take Care Clause imposes an obligation on the President to enforce judicial decrees. Taney wrote that the President is “not authorized to execute [the laws] himself . . . but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.”

The Take Care Clause is an actual textual basis that requires the executive branch to enforce the Court’s decrees. But nothing in the Constitution binds non-party state executive branch officials to the Supreme Court’s edicts. Read the Supremacy Clause over and over again, and you will not see it.

Roberts moves onto the massive resistance.

After Brown v. Board of Education, for example, multiple state governors sought to defy court orders to desegregate schools in the South.

Roberts wisely does not say that southern states defied Brown itself. That is a common myth. Instead, he writes that local officials “sought to defy court orders.” Notice his careful phrasing. Roberts does not say these officials actually defied court orders. That was the point of the Southern Manifesto and the massive resistance. They didn’t actually defy court orders. Parties who were bound by judgments did not violate those judgments. Instead, powers were shifted to other parties, who were not bound by judgments. This practice led to the Court’s decision in Cooper v. Aaron, which established the principle of judicial supremacy and what I called judicial universality.

Roberts does not praise Cooper. Good! Roberts rightly praises the lower federal district court judges who toiled to desegregate schools with “all deliberate speed.” He also lauds the executive branch officials who actually took the steps to desegregate schools.

The courage of federal judges to uphold the law in the face of massive local opposition—and the willingness of the Eisenhower and Kennedy Administrations to stand behind those judges— are strong testaments to the relationship between judicial independence and the rule of law in our Nation’s history.

Roberts could have also mentioned Congress, which used its power of the purse to deny funding to segregated schools.

Ninth, Roberts writes that in recent years, elected officials have called for defying court rulings:

Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed, and the Nation has avoided the standoffs that plagued the 1950s and 1960s. Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.

I think here Roberts is addressing Senator Schumer’s “No Kings Act.” But this law does not allow parties to defy Supreme Court judgments. Rather, the law instructs lower courts to not follow Supreme Court precedent. I described part of the law here:

The law provides that federal courts “may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.” If taken literally, this statute directs lower courts to not follow binding Supreme Court precedent–they cannot consider the exact thing that the Supreme Court said must be considered. If only Republicans responded this way to Planned Parenthood v. Casey: federal courts “may not consider’ whether a law imposes a substantial burden on access to abortion. That would have been so simple!

Congress is certainly free to make such statements. It is a coordinate department of government that is entitled to interpret the Constitution. But unless we are willing to cross the rubicon of judicial supremacy, lower courts would be required to ignore Congress and follow SCOTUS. Now don’t get me wrong. I despise Cooper v. Aaron. If it takes Trump Derangement Syndrome to blow up judicial supremacy, then that may have been worth it. I think of Heath Ledger as the Joker walking away from the exploding hospital. But Schumer doesn’t quite have the chutzpah to go that far. Instead, he proposes a ham-handed way of playing keep-away from John Roberts.

And keep-away it does. This law stops short of disregarding any court decision.  I know many academics and pundits have made these assertions. But which politician? And is Roberts thinking about fringe members of Congress, or people in positions of power? Roberts here is opaque. And I’m not sure what “raised the spectrum” means here. Instead, the usual approach of the left is to expand the Court, strip jurisdiction, impose term limits, etc. Not even Abraham Lincoln called for “disregarding” Dred Scott. He would have simply limited the holding to the parties involve in that case. I think this fear must keep John Roberts up at night, but I’m not entirely sure if it is founded.

Tenth, speaking of Court packing, Roberts describes CJ Hughes’s response to FDR’s plan this way:

endurance. I also echo the words of Chief Justice Charles Evans Hughes, who remarked—in the after-math of a significant prior threat to judicial independence—that our three branches of government “must work in successful cooper-ation” to “make possible the effective functioning of the department of government which is designed to safeguard with judicial impartiality and independence the interests of liberty.”

“Significant prior threat to judicial independence,” indeed. Roberts responded to the Presidential Commission on the Supreme Court in his 2021 year-end report. Remember the Commission? Remember President Biden’s pointless Op-Ed?

***

What occasioned Roberts to write this report now? Was it the President’s Commission? The assassination attempt of Justice Kavanaugh? The Dobbs leak? The No Kings Act? Death threats against Texas federal judges prompted by tweets? No. I think Roberts is worried about the imminent inauguration. Could he have imagined that he would one day issue the oath of office to Trump, after having presided over Trump’s first impeachment trial, and declined to preside over Trump’s second impeachment trial?

Hang on, the next four years will be different. Expect the unexpected.

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