It’s not just that it’s disingenuous… it’s shabby legal writing too!
The post Chief Justice John Roberts Thinks You’re Stupid And He’s Probably Right appeared first on Above the Law.
(Photo by Alex Wong/Getty Images)
As Chief Justice of the United States, John Roberts prepares a year-end report, ostensibly to communicate with the American people — or Congress — about the state of the federal judiciary and his vision for the branch’s future. His approach this year is to condescend to the public while ignoring every useful area of inquiry about the court system.
Because he thinks everyone is too stupid to care.
In the past, he’s contemptuously told his audience that he’s aware of widespread corruption in the judiciary but that his plan to fix it was “f**k you, that’s what.” When that didn’t go over, he pivoted the next year — the year when we already knew that one of the justices had accepted at least half a million in luxury gifts under the table and another took a private plane to vacation with a party with interests before the Court — with a lengthy discourse on the history of typewriters.
Roberts certainly holds the public in low esteem, but it’s still amazing that he can’t even muster the energy to pretend to respect them for a pamphlet he writes once a year. This year, Roberts abandons last year’s trolling effort and saves us from a detailed lesson on the history of the Bates Stamp. Instead, he returns to flimsy claims, contradictions, and gaslighting.
He compares having a cross burned on a judge’s lawn to mean people posting on Twitter!
Of course, attempts to intimidate need not physically harm judges to threaten judicial independence. In earlier times, these provocations usually were directed at judges’ homes. Perhaps the most egregious example involved U.S. District Judge Julius Waties Waring. As a judge in South Carolina from 1942 to 1952, Judge Waring issued numerous rulings opening voting and educational opportunities for Black Americans. Local residents outraged by these decisions burned a cross in the judge’s lawn, fired gunshots at his home, and hurled a large lump of concrete through his front window….
Today, in the computer era, intimidation can take different forms. Disappointed litigants rage at judicial decisions on the Internet, urging readers to send a message to the judge.
Methinks this analogy got away from him. But it’s clear what he’s trying to do. He wants people to stop pointing out that Thomas got an RV paid for by a health care executive or that Alito is coup curious. So he wraps himself in the heroic robes of Judge Waring — a trick he often employs in these reports — to suggest Reddit posts are the new cross burnings.
He assumes everyone is dumb enough to buy that.
His issue with intimidation is one of four areas of concern he highlights this year after a preamble where he claims the best thing about America is the fact that judges can be criticized. Now the “I’m not thin-skinned, but…” part of the report:
Unfortunately, not all actors engage in “informed 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.
Violence is obviously bad. Though it only makes its way into this report to poison the well by falsely equating routine criticism with violence. Indeed, he directly tries to blur the lines here and suggest that disgruntled Substack critic from above could promote violence.
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.
Except… impeachment is the constitutionally blessed mechanism for public officials to address judicial misbehavior. Roberts doesn’t name the judge here — in a social media conversation with Reuters’ Nate Raymond, we questioned whether this refers to Judge Chutkan or Judge Cannon. The description Roberts concocts doesn’t precisely fit either judge. Which might be why he leaves it vague as an empty signifier to either side of the Trump criminal case question.
“Suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” is the height of bad faith. The Court is junking decades of precedent every term while enjoying vacations with right-wing activists. Will Roberts at least engage this issue?
No. Because pre-empting the best opposing arguments is good legal writing and the Roberts report is… not that.
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 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.
“Typically speak only through their decisions” says the guy running a Court that routinely changes the law without issuing written opinions. Perhaps, if he’s so concerned about disinformation, he could address the problems with the shadow docket and his plans to address those.
But he won’t, because this is not a serious report.
I’ve seen some online chatter that this might be aimed at Trump misleading his throng about court decisions. And while that might have been a concern, that evaporated with his reelection and the fully compliant judicial system he now enjoys.
More likely, this is a bid to undermine the public’s faith in legal analysis. The public doesn’t necessarily appreciate how much obfuscation exists in rulings by design let alone when a judge affirmatively tries to muddy the waters. When a court tries to say “oh, we didn’t really do what the analysts are saying, we decided it on standing!” the public relies on legal analysts to cut through this nonsense and explain what they’ve actually done.
The final threat to judicial independence is defiance of judgments lawfully entered by courts of competent jurisdiction.
This is pure gaslighting. While this could refer to a lot of stuff, it seems most closely related to the judge shopping controversy that’s given rise to conservative activists nullifying national laws by filing in jurisdictions like Amarillo where a former right-wing interest group lawyer sits on the bench and is the only possible judge to hear the case.
There’s not, in fact, a lot of conversation about wholesale ignoring court rulings. There is talk of not letting the FDA operate at the whims of a Texas judge elevated for his partisan leanings. In practice, the reform would take the shape of some kind of jurisdiction stripping effort to limit nationwide injunctions or force these cases about federal agencies into the D.C. courts. Which is a long way from “defiance of judgments lawfully entered by courts of competent jurisdiction.” This seems an opportunity for Roberts to deal with this nuance.
He won’t.
This is, theoretically, the judicial equivalent of the State of the Union address. Not that every State of the Union provides a wealth of details, but presidents do feel shamed into at least spinning the issues plaguing their administrations. Roberts goes the other way, with eight-and-a-half pages ignoring the collapse in public confidence in the courts and the ethical cesspool he’s running and insinuating that everything is the fault of those pesky critics.
America should demand more from a Chief Justice. But it won’t.
(Full report on the next page…)
This is neither here nor there, but in light of the term limits conversation, it’s notable that Roberts opened the report reinforcing one of the great textual lies out there:
In December 1761, a little more than one year into what would be a fifty-nine year reign, King George III decreed that from that date forward, colonial judges were to serve “at the pleasure of the Crown.” This royal edict departed from the long-standing practice in England, enshrined by Parliament in the 1701 Act of Settlement, of allowing judges to retain their offices “during good behavior.”
This is your periodic reminder that the Constitution does not actually say judges enjoy life tenure. The idea that judges are destined to hold office for life is just the court’s interpretation of the phrase “during good behavior.” There’s some historical support for this interpretation — Hamilton suggests the language means “permanent” (query whether he would understand that term as life-long as opposed to shielded from at will firing) but there’s also support for the alternative reading that “during good behavior” is just an impeachment standard, to contrast it with the much higher threshold of proving “high crimes and misdemeanors.” Essentially, it just means they can be impeached for just being a drunk. Or maybe… grossly mismanaging the judiciary that is the Chief’s job? Food for thought.
“Good behavior” bars firing judges for no reason. Would it bar a neutral limitation of their term? Given that the structure of the judiciary is created by statute, is there any reason why active panels can’t be limited to the most recently appointed group of judges (as long as those moved off the panel don’t have their pay diminished)? These are good questions!
He will not engage them.
Earlier: John Roberts Once Again Uses Judiciary’s Annual Report To Express His Utmost Contempt For The Public
Chief Justice Wants You To Know He Has The Utmost Contempt For You
Chief Justice’s Annual Report Recounts 65-Year-Old Tale Of Judicial Heroism To Remind You There Isn’t Any Today
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
