On New Year’s Eve, Chief Justice Roberts issued his year-end report on the federal judiciary. The Chief’s elegant essay draws on American history to make some very important points about current threats to the judiciary.
The Chief frames his points by acknowledging that “criticism of judicial interpretations of the people’s laws is as old as the Republic itself.” Such criticism is not a threat to judicial independence. Indeed, he observes, “In a democracy—especially in one like ours, with robust First Amendment protections—criticism [of judicial rulings] comes with the territory.”
The Chief addresses “four areas of illegitimate activity” that “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.” I’ll address the first two together and then each of the other two.
On violence and intimidation: When I was a law clerk for Justice Scalia more than thirty years ago, I was disturbed to discover that his home address and phone number were listed in the local telephone book. Judges are increasingly vulnerable to violence because such personal information about them is broadly available. The Chief commends efforts by legislators to shield such information from the public domain. But as he recognizes, those efforts will achieve only so much, and judges will need continued physical protection.
Intimidation, the Chief points out, “can take different forms” in this Internet age. Rage on social media sometimes calls for “blowing up the courthouse where the target works.” Doxing—i.e., “the practice of releasing otherwise private information such as addresses and phone numbers”—has “prompt[ed] visits to the judge’s home, whether by a group of protestors or, worse, an unstable individual carrying a cache of weapons.” And “[a]ctivist groups intent on harassing judges have gone so far as to offer financial incentives for posting the location of certain judicial officers.”
The Chief also properly laments that public officials “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.”
I of course wholeheartedly agree with the Chief that violence against judges (or other government officials) is outrageously wrong. So, of course, are threats of violence and actions or statements that intentionally or recklessly invite violence.
It is especially appalling that Senate Democratic leader Chuck Schumer, at a pro-abortion rally outside the Supreme Court in 2020, made this thuggish threat::
I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.
Schumer stated the following day that he “should not have used [those] words” and that they “didn’t come out the way I intended to.” But he had an obligation to make a much more forceful denunciation of violence against the justices.
The leaker of the Dobbs draft invited the threats of violence that followed. It is unfortunate that the leak investigation that the Chief authorized failed to establish who the leaker was.
On disinformation: The Chief seems to me on much weaker ground in attacking “disinformation,” if only because the term is so nebulous. It’s a bad thing that so many folks don’t accurately present the rulings they are criticizing. It’s even worse if, as the Chief states, “hostile foreign state actors” are “using fake or exaggerated narratives [about judicial decisions] to foment discord within our democracy.” Alas, I’m dubious that much can be done about this.
On threats to defy lawfully entered judgments: The Chief complains that in recent years “elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings.” If so, that’s a very bad thing. Elected officials owe considerable respect to judicial rulings. That doesn’t mean, in my judgment, that they are in every instance obligated to abide by judicial rulings (see the compelling example that law professor Michael Stokes Paulsen provides here), but the bar for not doing so is a high one.
I see that the Washington Post’s Ruth Marcus reads the Chief’s complaint as “an unmistakable — and well-deserved — swipe at [Vice President-elect JD Vance] over his reckless suggestions that it is sometimes acceptable to defy the rulings of federal courts.” It’s not so “unmistakable” to me, but perhaps she is right to read the Chief’s complaint that way. In any event, Marcus’s own criticism of Vance’s position strikes me as ill-founded. Does she really believe, for example, that he is wrong when he states (in one of the passages that she quotes) that “if the Supreme Court said the president of the United States can’t fire a general, that would be an illegitimate ruling, and the president has to have Article II prerogative under the Constitution to actually run the military as he sees fit”?
(I do wish that the Chief would hyphenate “year end” in the title of his report since it’s being used as an adjective.)