As a very eventful 2024 drew to a close, Supreme Court Chief Justice John Roberts took the opportunity of his Year End Report on the Federal Judiciary to craft a coda to his prior compositions underscoring the fundamental importance of judicial independence in promoting and safeguarding the rule of law. As discussed in my 2024 Federalist Society Review article Declaring Independence to Secure Integrity: The Supreme Court Justices’ Code of Conduct, Chief Justice Roberts previously highlighted core principles of judicial independence in, among other documents, his 2011 and 2021 year end reports and his May 2024 letter in response to two U.S. Senators’ demands for Associate Justice Samuel Alito’s recusal in the Trump v. United States appeal. In my article, I argue the Justices’ 2023 adoption of the Code of Conduct “represents a bold and appropriate declaration of the Court’s independence in the face of the recent surge of congressional and media-driven efforts at intimidation of the individual Justices to influence their adjudication of cases.” The 2024 Report, though not mentioning the Code of Conduct by name, implicitly continues this vigorous campaign in defense of the Court’s independence and integrity, along with advocating on behalf of the federal judiciary as a whole.

After emphasizing the “healthy” and essential “robust First Amendment protections” for legitimate criticism of judicial decisions, the Chief Justice addresses “four areas of illegitimate activity that, in [his] 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.” As to acts of violence, he recounts the troubling history and data reflecting a “significant uptick” in these incidents over the last decade. Even in the face of this “vulnerability of judges who sign their names to the decisions they render each day and return home each night to communities,” he observes that these public servants “cannot hide, nor should they.” Moreover, he correctly notes that “attempts to intimidate need not physically harm judges to threaten judicial independence,” and that “in the computer area, intimidation can take different forms,” including the practice of “doxing” (which entails “releasing otherwise private information such as addresses or phone numbers”).

More controversially, the Chief Justice then points out that “[p]ublic officials, too, regrettably have engaged in recent attempts to intimidate judges—for example, suggesting political bias in a judge’s adverse rulings without a credible basis for such allegations.” As an example, he describes “a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment.” Josh Blackman and Dan McLaughlin have reasonably inferred this refers to Judge Aileen Cannon, who presided over the U.S. Department of Justice’s classified documents prosecution of then-former President Donald Trump, and who was the subject of numerous vicious attacks on her competence and integrity based on strong disagreements with her objectively defensible judicial rulings throughout the case. The “intemperance” in elevating disputes of law into assumptions of unethical behavior and political motivation that the Chief Justice chastises in his report has continued in response to Judge Cannon’s recent ruling to temporarily block the release of Department of Justice special counsel Jack Smith’s final report (now functionally obsolete in a moribund prosecution) in the days leading up to President Trump’s inauguration.

Next, Chief Justice Roberts discusses the problem of “[d]isinformation” in the public sphere about judicial rulings, which “can take several forms” and “undermine confidence in the court system.” As “judges typically speak only through their decisions” and “do not call press conferences or generally issue rebuttals,” the judiciary faces special challenges in dealing with this problem. In addition to reinforcing his previously expressed support for enhancement in “civic education as the best antidote for combating the epidemic of disinformation,” he also warns that additional steps need to be taken to address concerns about “hostile foreign state actors” who have at times fed “false information into the marketplace of ideas” through the use of bots to create “fake or exaggerated narratives to foment discord within our democracy.” He could also have cited numerous instances of domestic legacy media, elected officials, and other prominent figures promoting “fake or exaggerated narratives” in response to controversial Supreme Court decisions, such as Dobbs in 2022 and the presidential immunity decision in 2024.

Lastly, Chief Justice Roberts turns to a “final threat to judicial independence,” which he describes as “defiance of judgments lawfully entered by courts of competent jurisdiction.” This aspect of the 2024 Year End Report has thus far attracted the most focused attention from media commentators (such as Ruth Marcus) and legal scholars (such as Josh Blackman, Ilya Somin, and Ed Whelan), especially the following passage:

It is not in the nature of judicial work to make everyone happy. Most cases have a winner and a loser. Every Administration suffers defeats in the court system—sometimes in cases with major ramifications for executive or legislative power or other consequential topics. 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.

(Emphasis added). In speculating who “across the political spectrum” might be at the forefront of his mind, Marcus claims it is Vice President-elect J.D. Vance at whom the Chief Justice is taking an “unmistakable—and well-deserved—swipe,” based on Vance’s comments in a 2021 podcast and in more recent media interviews about presidential authority over the federal bureaucracy and over military personnel as Commander-in-Chief. Somin agrees with Marcus that Vance is an intended subject for this criticism, but contends (unpersuasively, in my view) that President-elect Trump himself is the primary target of the Chief Justice’s admonishments. Blackman specifically disagrees with Marcus’s claim about this being intended as a “swipe” at Vance, and additionally counters with his view that “Vance’s full interview on the [2021] podcast reflects a sophisticated understanding of the limits of judicial supremacy.” He notes that the 2024 Year End Report “continues to confound,” with a stream of conjecture as to who the Chief Justice was talking about—perhaps even that he “may have been talking about the 46 Democratic senators who recent signed a letter” —pointedly, “in defiance of several federal court rulings”—“urging [President] Biden to order the archivist to publish the [Equal Rights Amendment] and recognize it as officially ratified.” Blackman, correctly in my view, observes that our being “only left to speculate” about who is being criticized is itself a “problem” for judicial independence—and one of the Chief Justice’s own making:

The Chief Justice of the United States took a swipe at unnamed members of the coordinate branch of government, leaving people to attack politicians like the incoming Vice President and Senators with the imprimatur of the Chief Justice. Roberts tried to stay out of politics, but in the process, unduly injected the Court into politics. Sound familiar? Time and again, whenever Roberts tries to “depoliticize” the Court, he ends up making the Court more political. This episode teaches, once again, why Judges should simply stay out of politics, and politicized-judging.

Be a judge, and let the political chips fall where they may. I hope Roberts learns this lesson, and doesn’t try to pick-and-choose which Trump actions deserve lectures. If you want to focus on fixing institutions, start at home. STOP THE LEAKS.

Moreover, I agree with Ed Whelan’s comments on the report’s discussion of threats to defy lawfully entered judgments, including his observation that the “considerable respect” elected officials (whether executive or legislative) owe to judicial rulings does not necessarily mean “they are in every instance obligated to abide by” any judicial ruling without regard to its substantive legality—though “the bar for not doing so is a high one.” He cites a fascinating series of blog posts and a law school hypothetical published by Michael Stokes Paulsen in 2015 that explore the scope and limits of “judicial supremacy,” which I encourage readers to examine and ponder.

In the concluding passages of his 2024 Year End Report, Chief Justice Roberts acknowledges “[t]he federal courts must do their part to preserve the public’s confidence in our institutions,” which includes judges “stay[ing] in our assigned areas of responsibility and do[ing] our level best to handle those responsibilities fairly.” The rule of law and the effectual pursuit of justice under the law crucially depends on all branches of government engaging in “successful cooperation” consistent with our Constitution and its recognition of the separate and distinctive powers they are granted. Even with the concerns noted here (i.e., his politicized reference to unnamed “elected officials” and their expressed attitudes toward judicial judgments), the Report as a whole meaningfully contributes a new chapter to the Chief Justice’s serial efforts to advocate for the federal judiciary and its core principles of judicial independence.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].