For the few who muddled through the introductory blather, Chief Justice John G. Roberts, Jr.’s 2024 Year End Report on the Federal Judiciary imparts a prescient message, becoming of the esteem and discernment of his high office: You guys are being too mean to me. Bemoaning four categories of rampant “[un]informed criticism” of the Court, which seems to include anything he doesn’t like, given that he can’t point to any examples of “informed criticism” or lessons learned over the years, the Chief’s apparent failing grasp on reality betrays, in fact, a dangerous misapprehension of his Constitutional role and that of the Federal judiciary generally.
In the near term, Roberts deplores an uptick in threats of “violence directed at judges for doing their job,” intimidation, and misinformation. Though, even he can’t airbrush conservatives’ far greater propensity for violence in this nation’s history—who was burning all those crosses on judges’ front porches last century? Nor does he appear cognizant of his own culpability in cultivating this nation’s culture of violence. Why are instances of “doxing” so dangerous; and whose qualified-immunity jurisprudence ensures that Americans’ most visible interactions with the State involve both open threats and regular instances of violence? Who guarantees the wild proliferation of firearms? Whose hostility to labor rights perpetuates the violence (work or starve) underlying wage labor? Atop delusion, the Chief has the gall to flaunt his comfortable insulation from the consequences of his own decisions, thanking Congress for extra funding and the United States Marshals for their increased efforts. And even if we agree with the Chief that protests outside Justices’ homes goes a bridge too far, one might ask Roberts why so many Americans feel so disenfranchised that they would resort to such activity?
More embarrassing, as though the man who told us in Parents Involved, in Shelby County, and in Students for Fair Admission that “racism is over” has any remaining credibility, is the Chief’s consternation about misinformation: “distortion of the factual or legal basis for a ruling can undermine confidence in the court system.” Pay no mind to all the calls coming from inside the house. To Justice Gorsuch’s fan fiction about one misbegotten Coach Kennedy, knelt in silent and lonely prayer on the 50-yard line at Bremerton Island High. Or to American law schools ever propagandizing new generations of lawyers with the sanctity of property and procedure; the delusion of originalism; or the lie that Congress doesn’t have plenary authority to enforce the Reconstruction Amendments. We’re instead supposed to be up in arms about whatever the Chinese government can communicate to our barely literate teens in 5-second increments over social media.
Moving forward, though, the reader will begin to grasp that Roberts isn’t just whining like a child asking to be told he’s done a good job. Rather, criticism, for John Roberts, isn’t so much a personal matter as a Constitutional one. This first becomes apparent in the second half of his moaning about “intimidation”—complaining, it seems (and as other commentators have noted), about Democrats calling for the impeachment of at least District Judge Aileen Canon (for her laughably biased handling of the Mar a Lago documents case) and perhaps even of Justice Clarence Thomas (for wild corruption). Apparently, instead of the preferred and Constitutionally enumerated method of dealing with judicial misconduct and incompetence, impeachment calls now rank as no more than “[a]ttempts to intimidate judges for their rulings in cases” which “are inappropriate and should be vigorously opposed.” And Roberts closes out his criticism-as-constitutional-affront tour, damning all who would refuse to declare obedience to his mandates in advance. Of course, he can’t point to any recent examples of defiance and instead gestures vaguely toward Massive Resistance—which, to be clear, he blessed and championed by putting the nail in school integration’s coffin in Parents Involved. Nevertheless, he concludes that “[t]hese dangerous suggestions [of disregard for federal court rulings], however sporadic, must be soundly rejected.”
The Chief can’t imagine just limits to or disregard for judicial rulings because he cannot seem to conceive of the judiciary as being in dialogue with two coordinate (one of them theoretically superior) branches of government. For a simple example, Roberts misapprehends the rule of law as merely the procedure of judicial decisionmaking rather than an essential substance of democracy. Tellingly, he dares to quote Justice Ruth Bader Ginsburg—in whose seat he confirmed the present Court no more than an arm of the Republican Party—to proclaim the import of the “rule of law,” that pillar of “[o]ur political system and our economic strength,” which “can be shattered if the society law exists to serve does not take care to assure its preservation” (no mention about what to do when law ceases to serve that society). That “rule of law,” the Chief tells us, “depends…on Article III of the Constitution and judges and justices appointed and confirmed under it.” Sure. But the “rule of law” depends a whole hell of a lot more on Congress and the Presidents’ dedication to evenhanded drafting and execution of the law—to the democratic tenet that those who make law are governed by it just as those who are governed by the law make it (a tenet notably missing from Roberts’ recent proclamation of Presidential impunity). And, more importantly, the rule of law begins with the citizenry’s ethic of reciprocity: our mutual recognition of equal human dignity and covenant to submit ourselves to the votes of others just as they submit themselves to our votes (an ethic disturbingly lacking in Roberts’ various decisions subordinating African Americans and other Americans of color). That, far more than nine decrepit robes, best guarantees that “man can be sure that he may not to-morrow be the victim of a spirit of injustice, by which he may be a gainer today.”
For the more important example, Roberts flat out misses the fundamental justice of democracy. Citing our favorite segregationist, he writes:
Indeed, it is no exaggeration to conclude, as Chief Justice Rehnquist did, that “the creation of an independent constitutional court, with the authority to declare unconstitutional laws passed by state or federal legislatures, is probably the most significant contribution the United States has made to the art of government.”
Not the declaration of human equality; nor the rejection of monarchy in favor of democracy. Not the abolition of slavery; nor enfranchisement of the freedmen, and women. Nor the unbroken tradition of a peaceful transfer of authority after each election (oh wait). No—judicial review by unelected and unaccountable aristocrats (oligarchs, if we’re being honest) is our greatest triumph. Roberts continues, “an independent judiciary must uphold the Constitution against the shifting tides of public opinion.” After all these years, the Nation’s chief judicial officer still thinks the essence of our Constitution lies musty tomes to be divined in conclave by the berobed (but remember—Catholic Nationalism isn’t a problem, right?). Nothing could be further from the truth. Our Constitution, our democracy (as Roberts admits of it), rests on the recognition that there is no just rule but by the consent of the governed, that the “shifting tide[] of public opinion”—the People in Congress—is not, in fact, the rumblings of the great unwashed but rather is both our best and most just form of human decisionmaking. Not the Court, and certainly not John Roberts, but the People, today (not in 1789), in Congress are the best interpreters of their own Constitution and expositors of their own laws. The only substantive boundaries of that communal deliberation, and thus the only possible grounds for judicial review of legislation, are precisely those principles that impart communal decisionmaking with its moral value in the first place: human equality, and its corollaries of consent and reciprocity (principles, curiously enough, largely absent from Roberts’ own jurisprudence). John Roberts castigates those who would disregard his rulings while simultaneously claiming the incontrovertible authority to disregard the People—and he calls it democracy!
In the end, it’s unsurprising that Roberts, so focused on justifying his untouchable office & salary, misses the pretty clear implication in Hamilton’s Federalist 78. Lacking either purse or sword to enforce their will, Federal judicial decisions rest entirely on the force of reasoning to compel either Congress or the President. Roberts makes much of the Court’s ability to discern our constitutive principles from the depths of the Supreme Court Library, but cannot bring himself to recognize that, at bottom, all political decisionmaking lies first, foremost, and ultimately with the People in Congress. Far more important than any Court’s ability to discern those principles is that Court’s ability to convince Congress of them. As Lincoln warned in his First Inaugural Address, when the Supreme Court alone decides Constitutional questions, the People will cease to be their own rulers. John Roberts seems just fine with that.