This year’s theme was judicial independence and the peril it faces. Roberts’s choice of topic is timely. Public approval of the Supreme Court has declined precipitously since he joined it two decades ago this year, with fewer than half of Americans expressing support in a Pew Research Center survey last year. An alarming Gallup survey from December found that only 35 percent of Americans have confidence in the nation’s courts in general. Gallup researchers noted that they had rarely seen such a sharp, sustained decline outside of collapsing autocracies.
Roberts is correct about some of the threats he identified in the report, such as violence towards judges or efforts to defy court rulings. But his discussion of other threats is troubling. At times, Roberts appears overly concerned with conflating criticism of the court with intimidation, mistaking persuasion and pressure for thuggery.
The chief justice accurately noted that “attempts to intimidate need not physically harm judges to threaten judicial independence,” citing instances where federal judges in the mid-twentieth century were harassed for their civil-rights rulings. He also cited incidents where judges were doxxed, where protesters gathered outside their homes, and even alluded to an incident where an armed man threatened to assassinate Justice Brett Kavanaugh outside his home last year.
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.
Neither of these episodes amounts to intimidation. It is worrying that the chief justice of the United States would define them as such. The Supreme Court wields more power over American lives than any other institution in this country—more than the presidency, Congress, the Federal Reserve, the College Football Playoff Committee, or anything else. Criticism of the courts can be misguided and inaccurate. But criticism alone never amounts to intimidation, even when it comes from members of Congress.
The chief justice is correct that violence against judges threatens judicial independence—and, indeed, the rule of law itself. He noted that such acts, while rare, have tragically ticked upward in recent decades. Two state judges have been murdered in the last four years, and a litigant-turned-gunman killed a federal judge’s son and wounded her husband in an attack on their home in 2020.
Roberts also correctly warned about threats to defy court rulings. He noted that the judiciary’s power has not been seriously challenged since the civil-rights era. “Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings,” he wrote. “These dangerous suggestions, however sporadic, must be soundly rejected.” Hopefully President-elect Donald Trump, who has mixed views on judicial independence at best, takes these comments to heart.
“Disinformation, even if disconnected from any direct attempt to intimidate, also threatens judicial independence,” Roberts claimed. “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.”
Another problem is that the court itself has occasionally been the source of distortions. The justices have taken up multiple cases in recent years where conservative litigants used phantasmal or factually disputed grounds to achieve favorable rulings. A high school football coach in Washington state persuaded the justices to shift the balance on school prayer based on factually disputed grounds, as the court’s liberals pointedly noted in dissent. He coached a single game after getting his job back and then resigned.
It is also hard to take Roberts’s concerns about “distortion” seriously after the court’s rulings in 2024 on Trump. The chief justice joined the majority in an unsigned ruling in Trump v. Anderson that gutted the Fourteenth Amendment’s disqualification language so that Trump could run for a second term unhindered. A few months later, in Trump v. United States, Roberts distorted the Constitution to give sweeping criminal immunity to current and former presidents. That ruling was not merely wrong; it was blasphemous to the American constitutional order.
While civic education is never a bad idea, it is also insufficient to the task at hand. It is beyond Roberts’s power to personally address the deeper legitimacy issues facing the high court. He cannot stop Thomas or Alito from hanging out with right-wing billionaires, or block his five conservative colleagues from issuing rulings that further undermine the court’s credibility, or reverse decisions like Citizens United that sent our political system into decline. Conflating the court’s critics with genuine threats to judicial independence will not reduce the criticism that the judiciary receives nor the danger that it faces.
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