The Chief Justice does not understand what is wrong with the Court over which he presides.
Eight long months have passed since the unprecedented leak of the draft opinion in the historic case of abortion, Dobbs v Jackson Women’s Health. When it happened last May, Chief Justice John Roberts described it as a “singular and egregious violation of that trust which is an affront to the Court.” As nominal head of that Tribunal, it fell to Roberts to investigate the leak and then presumably do something about it, but in the intervening months, the iinternal leak investigation-What sorted by roberts— has moved forward without disclosing to the public what harriet the spy Y Inspector Gadgetor any crack detective crime solver it has appeared.
This shocking leak, for which Senator Ted Cruz once insisted for someone to be “instantly fired” and also “prosecuted” and also “do real jail time”, you’ve already gone the way of great indecipherable mysteries of our time. Judge Clarence Thomas may have once characterized it as “an infidelity” this had deeply broken the trust between the magistrates, but apparently the Court chose to continue operating without restoring that trust. So much so, that it need not be discussed anymore. The 2022 injunction may have opened with Judge Neil Gorsuch stating that he was optimistic the mystery of the Dobbs The leak would be made public “soon” but has now come and gone with hardly a word from the Marble Palace. Strange. In a building populated by about 500 employeesalmost none of whom would have had access to a quasi-final draft opinion, the identity of the Dobbs The leaker follows the path of the Bermuda Triangle and Amelia Earhart. Although the leak supposedly traumatized the institution and its members, the agreement seems to be that we should never speak of it again.
So perhaps no one should be surprised that this great Supreme Court mystery, a breach of trust on an order of magnitude never seen before, appeared nowhere in the pages of the annual Chief Justice. year-end report on the federal judiciary. That report, which fell, as it does, on New Year’s Eve, was widely covered for his lack of references to several important issues facing the Court this year. These included: the Dobbs fugue, the Supreme Court Historical Society baffling role as a secret conduit for SCOTUS access seekers and their bulging wallets, and any reference to Judge Clarence Thomas’ continued insistence on ruling on cases directly affecting his own wife (this would seem to violate the ethics rules binding the Supreme Court, but as we now know, they do not bind the Supreme Court). None of these crises was mentioned in the report. Why? because all these controversies make the court look bad, and Chief Justice Roberts doesn’t want that.
He TRUE The mystery, then, is not simply how Roberts’ year-end report ended up centering threats to US judges as the most pressing concern of the last calendar year. The real mystery isn’t even how the report suggested that comparisons between a 1957 Arkansas desegregation case that brushed back lawless state tween and brought threats to a lawyer struggling to uphold a precedent is somewhat analogous to what happened in Dobbs. No, the real one who does not following Roberts’ report, it has to be this: Who killed the last vestige of shame on One First Street? Why Benoit Blanc, call your office. I want to report a murder.
Not that any of us really expected the Chief Justice, who was once favorably compared to John Marshall and even his own mentor, William Rehnquist, to show up willing to put the interests of the Supreme Court ahead of his own parochial desires. . He will use his votes and opinions to do that, no doubt, but not his statements as his Chief. Taking on that royal responsibility would require accepting a leadership role that includes speaking the truth to an uncontrollable power, even if that uncontrollable power belongs to the court. The Chief Justice is well aware of what crises have beset the high court and its reputation in the past term. But all he wanted to talk about was how that manifests as threats to judges.
Possibly, the time for institutional self-criticism and introspection passed just at the moment Amy Coney Barrett flew in for a concert at the Mitch McConnell Center and then blamed the press for public mistrust in the institution. Or if not then, perhaps the time came when the court revoked Roe vs. Wade in a few sentences in the shadow docket at the beginning of the 2021 term. But certainly the expectations of a court reflecting on its own complicity in the public’s distrust of it were at zero when Samuel Alito was delivering triumphant insults-comic speeches about Dobbs in Rome last summer, and when Ginni Thomas was still insisting that 2020 Biden stole the election in September, as ruled by her husband on the cases of January 6. In fact, it has become quite obvious that if you can’t beat the ethics challenges in court, you can just join them. Or at least cover them.
And that, it seems, is the game. The Chief Justice continues to doggedly reframe public anger at the court as one of two things: a public concern and also a security risk for judges. No one is here to defend violent threats against the safety of judges and their families; that’s why Roberts didn’t need to spend his year-end review arguing for judicial protection against threats of violence. But the public is struggling to understand how he can have faith in a court with no check mechanism in its effort to reform the constitution in two years. In response to that anger, the court put up a security fence. Now imagine if the Chief Justice had spoken candidly about that.
Consider what Roberts spent his time doing instead. Roberts offered a historical account of the threats a courageous judge in Arkansas faced after he ruled in favor of integrated schools in 1957. After Governor Orval Faubus ordered the Arkansas National Guard to intervene to prevent the School Board of Little Rock to allow black children to attend school, US District Judge Ronald N. Davies heard the case and decided in favor of the Little Rock Nine. He did this in the face of dire threats against him and his family. There are photos! The Supreme Court is preserving and displaying the artifacts! It is a moving tribute to judicial courage. You are also making an explicit or implicit comparison between Dobbs Y brown v board. Which is absurd.
While Roberts may claim that the chaotic political and legal landscape that followed Brown is comparable to the self-created havoc the court has wreaked on today’s political and legal landscape, the public doesn’t seem to agree. Instead, public distrust of the court is the fault of the court itself in a dozen ways the chief justice persistently refuses to publicly acknowledge: there’s unethical conduct, inappropriate speech, the influence of dark money, nasty christmas party mates, and judicial denial of challenge in matters in which a family member has an interest in the outcome. And don’t forget about the abuse of the emergency docket, the disregard of precedent, the promotion of false opinions and the attempt to take cases that are not properly brought to court. This is not a national civil rights agitation comparable to Brown v. Board. It is the continuous claim that this moment is analogous to Brown v. Board.
This year, Chief Justice John Roberts may have used his own votes and opinions to register your discomfort with the shadow fileand to gently warn that the reversal of binding abortion precedent was a “shock the system”. But he refuses to use his speeches, his trusteeship or his year-end report to publicly acknowledge that the decline in public trust in the court is a two-way street, and that what is coming out of the court and down down One First Street in recent years is not pretty.
One is left with the dispiriting feeling that John Roberts is doubly cursed: unlike some of his conservative colleagues, he is well aware of the many ways in which the justices themselves are doing violence to the court’s reputation as impartial and above all else. the fray However, since he doesn’t think he can do anything about it, he refuses to acknowledge it. He is taking all the tests shoddy and unethical behavior and sweeping it under the rug, then pointing to the carpet trash mound and blaming the American public.
Honestly, I feel a little sorry for the Chief Justice. Historians are likely to remember him as the most principled Chief Justice ever to have completely lost control of his court in real time and in plain sight, just when he insisted it was all unbelievable. Since he had the opportunity to use his year-end report to say anything not at all about the ways in which judicial legitimacy is earned, rather than demanded, from the public, or about the ways in which the most destabilizing term in modern history had forced the court to recalibrate its own ethical and judicial standards, its decision to say none of this is instead yet another failure to meet the historic moment.
As pregnant Americans try to reimagine how to deal with their pregnancy losseshis frustrated needs for birth controlhis new economic realitiesand them lifesaving medical needs thanks to dobbs, The Chief Justice’s choice to focus on himself and his colleagues, ensconced in the protections of life tenure, was a choice to blind himself to the suffering of which he is well aware. Judges are suffering after the 2022 term. So are millions of others. Refusing to see the connection is the problem, not the solution.