Chief Justice Doesn’t See Some Threats to Court Are Self-Inflicted

”I feel compelled to address four areas of illegitimate activity that…threaten the independence of judges on which the rule of law depends”, was the subject of Supreme Court Chief Justice John Roberts’ annual report on the federal judiciary including his own court that he published at year-end. He elaborates on four categories: “(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.”

Supreme Court Chief Justice John Roberts.

To be sure violence and intimidation “directed at judges because of their work” aren’t simply “unacceptable” – the weak word he uses – but must be met with the harshest of legal penalties. But he seems blinkered for his report’s complete failure to show a recognition that the Supreme Court itself has contributed at least to widespread criticism if not yet open defiance of “lawfully entered judgments”.

There is no mention whatever of the investigative reporting by Pro Publica that beginning in 2023 unearthed twenty years of scandalous ethics violations by Justice Clarence Thomas for accepting lavish cost-free travel and vacation benefits bestowed upon him and wife Ginni by billionaire Harlan Crow and by his never reporting any. Crow over the years had interests in many issues that had come before the court so there has been more than a whiff of corruption.

Further sleuthing found the same sort of violations by Justice Samuel Alito. Still more instances of "personal hospitality" accepted by Thomas and Alito were revealed just this Christmas-week by a two-year Senate investigation. And yet, responding in 2024 to the outrage that the court needed an enforceable code of conduct, the court refused any oversight and came up with a tepid code that left recusal solely up to the individual justice and didn’t even fully nail down reporting of gifts.

Roberts has no end of problems with Alito, a free range justice who can’t find any fault in his actions, and instead has often been in a lather over criticism of the court:

“This type of concerted attack on the court and on individual justices [is] new during my lifetime…We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us.”

In May The New York Times broke the story that an upside-down American flag – a signal of distress but also of protest and seen at the January 6th uprising — had been hanging at the Alito's house. His wife’s doings, said the justice. Another, an historic "Appeal to Heaven" flag associated currently with the movement for a more Christian government, was seen outside their New Jersey vacation house.

The public has a naïve view that judges ought to be neutral, that flying banners and flags with political connotations of any sort is impropriety, yet Alito refused calls to recuse himself from cases related to January 6th as did Thomas, whose wife Ginni, in close to 30 messages to Trump’s Chief of Staff Mark Meadows, had strongly advocated in the run-up to January 6th that everything in his power be done to overturn Joe Biden's 2020 election victory and hand Donald Trump a second term as president. No conflicts there, right?

In 2023, Alito sat for Wall Street Journal interviews with lawyer David Rivkin, giving Alito the opportunity to express his views to a wide audience. Rivkin often wrote opinion pieces for the Journal but at that moment represented the petitioners at the Supreme Court in Moore v. U.S.. If Rivkin’s softball interviews were not currying favor from Alito, they sure had the appearance, yet the justice refused to recuse himself from the case. "When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate", was how Alito self-justified the conflict.

And just about when Roberts was polishing his report, Alito was at it again. One of his former law clerks asked Alito to take a call from Trump regarding his qualifications for a certain government position. Alito was effectively creating a debt owed to Trump by asking him the favor of hiring his former law clerk. This was happening the day before the Supreme Court would rule on whether Trump's sentencing in the New York "hush money" case could go forward. Trump and his lawyers had petitioned the court to halt the sentencing — the final step that made Trump a convicted felon before he became president, which Trump passionately sought to avoid. Alito in a statement said he had no idea Trump would petition the court, a move the media had openly contemplated beforehand because that is what Trump always does. Democrat Representative Jamie Raskin did not mince words:

“Justice Alito’s decision to have a personal phone call with President Trump – who obviously has an active and deeply personal matter before the court—makes clear that he fundamentally misunderstands the basic requirements of judicial ethics or, more likely, believes himself to be above judicial ethics altogether.”

That brings up a larger question about how the Supreme Court conducts its business. Trump did what no other criminal defendant in history has ever done. He appealed directly to the Supreme Court to block his criminal sentencing scheduled for two days later in New York. He did so before exhausting all of his appeals within the state “which is the normal sequence for anyone not named Trump” as Chris Hayes of MSNBC put it. The Trump lawyers made an “appeal raising claims of Presidential Immunity”. He was not yet president again and was convicted of crimes committed when he was then not yet president either. Nevertheless, the court treated it as an emergency petition and turned it around within 24 hours.

The question is why did the Supreme Court honor this petition at all? Just as Roberts is complaining about the disrespect of the courts, the justices were granting privileged access unequalled even by the three-day turnaround when the court stopped the Florida vote count and awarded the presidency to George W. Bush in 2000, scarring the court's record forever.

Moreover, while the court said sentencing could go forward, it did so because the judge had said in advance that there would be no consequences — no jail time, no penalties, Trump didn’t even have to show up in person, which is unheard of in sentencing. As attorney for the Democratic Party Marc Elias wisecracked, “The only thing he left out is giving him parking validation and making sure he doesn’t have to pay congestion pricing to travel to the court house.” The implication was that the partisan court would have halted sentencing had Judge Merchan in New York imposed any inconvenience.

The vote was 5-to-4 vote with Roberts and Justice Amy Coney Barrett siding with the three liberal justices. But note that four said that sentencing should not happen. They dishonored a jury's finding of Trump’s guilt (and Trump has endless opportunity under the justice system to appeal), a signal that these four justices are in Trump's corner whatever. Is it any wonder that such favored treatment has contributed to a public questioning of the court’s legitimacy?

“Within the past few years…elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings”, Roberts writes. Perhaps he should look to his own court for such “lawfully entered judgments” that are breeding defiance.

The overturning of Roe v. Wade in 2022, a radical assault on 50 years of precedent, was met with fury. During arguments seven months before the decision, Justice Sonia Sotomayor bitterly criticized her conservative colleagues.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

Nothing has changed that assessment. No matter one’s passions about abortion, turning control over to the states has created ongoing chaos. At its worst, it is causing horrifying deaths in states such as Texas where the laws are so mindlessly severe that gynecologists are leaving the state and hospitals fear prosecution for saving the lives of dying pregnant women. Is Roberts mindless of the aftershocks and danger Dobbs, as it is called, has caused. His report is silent.

Moreover, that Roe was repealed soon after the reconfiguring of the court with three new conservative justices amplified the public's questioning of the courts legitimacy. There's the ongoing stench of how that came about. Inventing the mendacious nonsense that no justice should be installed in a presidential election year, Senate Majority Leader Mitch McConnell violated the Constitution's call for "advice and consent" by blocking for 11 months any consideration of Obama's choice (Merrick Garland) to replace Antonin Scalia to give Trump the choice (Neil Gorsuch), and then, while voters were already casting ballots in the presidential election year four years later, changed his to ram through a third Trump pick (Amy Coney Barrett) before Biden took office. When justices are replaced and the laws suddenly change, it "doesn't look like law", said Justice Elena Kagan.

Last year’s blockbuster decision was that the president should have total immunity from prosecution for official actions even if illegal. Roberts’ report is on the “federal judiciary”, not just his court, but there is no mention of this momentous change in his annual report! He fears malcontents starting to disobey rulings of the courts in “defiance of judgments lawfully entered by courts of competent jurisdiction”, yet has practically invited malcontent Donald Trump — constantly railing against prosecutors, judges, and the legal system, and intent on retribution — to break laws at will with no consequences. The public sees this special deference accorded to a single person – yes, it applies to future presidents, but it was tailored to protect Trump, even rigged with prohibitions against the use at trial of certain evidence – and finds the Supreme Court not just biased but corrupt. It has elevated this one man above the law.

It was the culmination of a long process. It began when the court overturned the Colorado Supreme Court decision to keep Trump off that state’s ballot. A lower court had found Trump guilty of fomenting an insurrection which made him ineligible to run for federal office according to the Constitution’s Fourteenth Amendment. That section reads as self-executing, just as the due process section of that same amendment has always been treated, yet the court ruled that Congress must decide whether there has been an insurrection and whether the amendment should prevail. That obviously would not and did not happen. How is this not "lawfare"? It would have been impractical for each state to have decided the insurrection/ballot question, but nevertheless we watched the court void a section of the Constitution in favor of Donald Trump.

When Judge Tanya Chutkan moved the D.C. District Court toward trial of Special Counsel Jack Smith’s case against Trump’s attempted government overthrow, Trump’s lawyers claimed that as president the ir has immunity from prosecution. Chutkan ruled there was no such immunity; Trump appealed. So comprehensive and convincing was the unanimous decision by the three judge panel of the appellate court that it was thought that the Supreme Court would decline to even hear the case, yet once again it intruded in Trump’s favor. First it took weeks to do so, then months of further delay before finally coming up with the entirely novel notion — and not until July — that after almost 250 years the presidency needed to be shielded by immunity. The court had so blatantly stretched the process — wasn’t there about to be an election and shouldn’t voters know whether the candidate was guilty or innocent? – that there was no time left before the election for the Smith trial to proceed. The fix was in.

It was not a good year for Roberts to say in his report, “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them” when his own court had rigged the outcome and eroded trust. He was apparently surprised that his lofty arguments didn't soar above politics to convince the public that it wasn't about Trump. “Our perspective must be more farsighted.”

Conservatives have long inveighed against the "administrative state", by which is meant government agencies fleshing out legislation with the actual rules of how they are to be implemented. They got their wish last year when the court last year used its 6-to-3 conservative supermajority to deliver a decisive blow to what those on the right like to call "unelected bureaucrats". The six justices cut back sharply the power of federal agencies to interpret laws; henceforward, the courts will do their own interpreting.

The court has again overturned precedent — its decision in the 1984 case Chevron v. Natural Resources Defense Council the the courts should give deference to the agencies expansion of a law in its rule-making when the legislation is ambiguous or not fully spelled out. This became known as the Chevron Doctrine.

The court's decision hands to business what they have wanted: the expectation that when they sue to challenge a regulation, the agencies are out of the loop. The courts will decide. But the agencies specialize in their many fields, whether agriculture, energy, drugs — a long list. Cases will now go before judges who are entirely ignorant. Imagine their having to rule on whether the a ban on a chemical should be lifted which the EPA has decided is too hazardous in the human environment. The common sense view is that the Supreme Court has shown itself gto be incompetent for its wildly impractical ruling. Moreover, it is viewed as appropriation to itself the court system what is the purview of the executive branch — a devious power grab.

Yet Roberts wonders there is a worrisome increase in threats to defy the courts. Be still. "It is not in the nature of judicial work to make everyone happy. Most cases have a winner and a loser." The court decides for us and we should not raise our voices.