John Roberts Is Imagining Things

Chief Justice John Roberts wrapped up 2024 by once again issuing his annual year-end report. Though often brief and dry, it is often notable because it is one of the only times that he speaks ex cathedra outside the court’s usual work. Roberts rarely writes concurring or dissenting opinions compared to his colleagues; he has written a solo dissent from an 8-1 decision just once in his nearly two decades on the court; he rarely gives interviews or lectures on anything newsworthy.

This year’s theme was judicial independence and the peril it faces. Roberts’s choice of topic is timely. Public approval of the Supreme Court has declined precipitously since he joined it two decades ago this year, with fewer than half of Americans expressing support in a Pew Research Center survey last year. An alarming Gallup survey from December found that only 35 percent of Americans have confidence in the nation’s courts in general. Gallup researchers noted that they had rarely seen such a sharp, sustained decline outside of collapsing autocracies.

“Few countries and territories have seen larger percentage-point drops in confidence in the judiciary (over a similar four-year span) than the U.S.,” the report said. “These include Myanmar (from 2018 to 2022) overlapping the return to military rule in 2021, Venezuela (2012-2016) amid deep economic and political turmoil, and Syria (2009-2013) in the runup to and early years of civil war, and others that have experienced their own kinds of disorder in the past two decades.”

Roberts is correct about some of the threats he identified in the report, such as violence towards judges or efforts to defy court rulings. But his discussion of other threats is troubling. At times, Roberts appears overly concerned with conflating criticism of the court with intimidation, mistaking persuasion and pressure for thuggery.

“Unfortunately, not all actors engage in ‘informed criticism’ or anything remotely resembling it,” Roberts wrote. “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.”

The chief justice accurately noted that “attempts to intimidate need not physically harm judges to threaten judicial independence,” citing instances where federal judges in the mid-twentieth century were harassed for their civil-rights rulings. He also cited incidents where judges were doxxed, where protesters gathered outside their homes, and even alluded to an incident where an armed man threatened to assassinate Justice Brett Kavanaugh outside his home last year.

Opposing intimidation is an obviously worthy position. Most Americans would likely agree that people should not frighten, threaten, or strongarm judges. This stance would also go hand-in-hand with Roberts’ warnings about violence, since many forms of intimidation rely on threats of physical harm, whether they be explicit or implicit. The problem is that Roberts has a much broader definition of “intimidation” than its plain, everyday usage.

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.

This passage is a fascinating window into Roberts’s perception of the court and its place in public life. The first portion appears to refer to Senate Democrats’ sustained criticism of some of the high court’s members—particularly Justices Clarence Thomas and Samuel Alito—for their alleged ethical lapses. The latter portion appears to be a reference to a federal judge in Louisiana who oversees the New Orleans Police Department; Governor Jeff Landry called for her impeachment in March.

Neither of these episodes amounts to intimidation. It is worrying that the chief justice of the United States would define them as such. The Supreme Court wields more power over American lives than any other institution in this country—more than the presidency, Congress, the Federal Reserve, the College Football Playoff Committee, or anything else. Criticism of the courts can be misguided and inaccurate. But criticism alone never amounts to intimidation, even when it comes from members of Congress.

It is also wrong to conflate criticism of the justices—or of the courts in general—with genuinely serious threats to judicial independence. “Public officials certainly have a right to criticize the work of the judiciary,” Roberts concluded, “but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.” While I am sure Roberts is frustrated by the court’s declining public standing, this line of reasoning only diminishes the seriousness of actual threats to judicial independence.

The chief justice is correct that violence against judges threatens judicial independence—and, indeed, the rule of law itself. He noted that such acts, while rare, have tragically ticked upward in recent decades. Two state judges have been murdered in the last four years, and a litigant-turned-gunman killed a federal judge’s son and wounded her husband in an attack on their home in 2020.

Congress responded to the latter incident by passing a law in 2022 that makes it easier for federal judges to suppress and redact personal information about themselves online, such as their place of residence. President Joe Biden also signed a bill into law that year that boosted security for Supreme Court justices, their families, and necessary staffers. U.S. marshals began providing continuous security for the justices that May after the leak of the court’s draft ruling to overturn Roe v. Wade. Thus ended a long era, as I lamented a few years ago, where the justices could essentially blend in unnoticed in D.C. and beyond.

Roberts also correctly warned about threats to defy court rulings. He noted that the judiciary’s power has not been seriously challenged since the civil-rights era. “Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings,” he wrote. “These dangerous suggestions, however sporadic, must be soundly rejected.” Hopefully President-elect Donald Trump, who has mixed views on judicial independence at best, takes these comments to heart.

Beyond those areas of common concern, however, things got murky. Roberts also argued that “disinformation” is a threat to judicial independence. He pointed specifically to targeted cyberattacks and malign social-media campaigns as particular problems, which are a familiar and vexing issue throughout all corners of government and society at large. But he again adopted a much broader version of the term than is commonly used.

“Disinformation, even if disconnected from any direct attempt to intimidate, also threatens judicial independence,” Roberts claimed. “This can take several forms. At its most basic level, distortion of the factual or legal basis for a ruling can undermine confidence in the court system. Our branch is peculiarly ill-suited to combat this problem, because judges typically speak only through their decisions. We do not call press conferences or generally issue rebuttals.”

I can somewhat sympathize with the justices’ quandary here. It would be frustrating if someone wrote something incorrect about one of my articles and I did not have the ability to respond to them without consulting the canons of judicial ethics. At the same time, I am a little skeptical that the justices are as constrained as Roberts makes them sound. Thomas and Alito, for example, seem to have no problem speaking publicly about what they see as threats to the court’s work. (If the chief justice has any issues with what I’ve written, for example, I’m sure he could find a way to tell me.)

Another problem is that the court itself has occasionally been the source of distortions. The justices have taken up multiple cases in recent years where conservative litigants used phantasmal or factually disputed grounds to achieve favorable rulings. A high school football coach in Washington state persuaded the justices to shift the balance on school prayer based on factually disputed grounds, as the court’s liberals pointedly noted in dissent. He coached a single game after getting his job back and then resigned.

A Colorado web designer claimed that she wanted to design wedding websites but not for same-sex couples. She persuaded the justices to limit the state’s anti-discrimination law for gay and lesbian residents so that she could offer her services without fear of punishment. Even after that victory in June 2023, her website still does not list weddings as an option for customers on its events page. If the justices are concerned about accuracy and disinformation, there are places

It is also hard to take Roberts’s concerns about “distortion” seriously after the court’s rulings in 2024 on Trump. The chief justice joined the majority in an unsigned ruling in Trump v. Anderson that gutted the Fourteenth Amendment’s disqualification language so that Trump could run for a second term unhindered. A few months later, in Trump v. United States, Roberts distorted the Constitution to give sweeping criminal immunity to current and former presidents. That ruling was not merely wrong; it was blasphemous to the American constitutional order.

When it came to disinformation, Roberts was particularly emphatic about the need for solutions. “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,” he wrote. The chief justice did not elaborate what those other “appropriate measures” might be beyond civic education, perhaps because he thought it was not appropriate to recommend specific policy options.

While civic education is never a bad idea, it is also insufficient to the task at hand. It is beyond Roberts’s power to personally address the deeper legitimacy issues facing the high court. He cannot stop Thomas or Alito from hanging out with right-wing billionaires, or block his five conservative colleagues from issuing rulings that further undermine the court’s credibility, or reverse decisions like Citizens United that sent our political system into decline. Conflating the court’s critics with genuine threats to judicial independence will not reduce the criticism that the judiciary receives nor the danger that it faces.