Typically, the top jurist's annual report on the federal judiciary is the sort of thing only a handful of lawyers and journalists look out for on an otherwise quiet New Year’s Eve.
Recently, however, the public has paid extra close attention to the Supreme Court, thanks in part to the Republican-appointed majority’s decision to overturn Roe v. Wade in June. That's not to mention the myriad ethical scandals that have put increased scrutiny on the institution, as well as particular justices, such as Roberts’ fellow Republican appointees Clarence Thomas and Samuel Alito.
Roberts himself condemned the May leak of Alito's opinion overruling Roe. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” the chief justice proclaimed in a rare public statement after Politico published the draft opinion.
“The work of the Court will not be affected in any way,” Roberts said at the time, adding that he was instructing the marshal of the court to investigate the leak, which he called “a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”
Since then, Roberts has failed to provide an update about the leak that he claimed was so dire or to express similar outrage at the reported religious right campaign to influence the court, which included another allegation of an Alito opinion’s leaking — this time in 2014.
So it was fair to wonder, as we waited for Roberts’ latest report, whether he would address the court’s various scandals, its lack of an ethics code or anything of the sort.
He did not.
Instead, the chief touted the importance of judicial security, applauding Congress for passing a law protecting judges, the Daniel Anderl Judicial Security and Privacy Act. The bill's namesake, 20-year-old Daniel Anderl, was killed at his family home in New Jersey in 2020 by a man who targeted his mother, federal Judge Esther Salas.
Obviously, judges and their families shouldn’t face violence. Justice Brett Kavanaugh dodged an alleged assassination attempt after the leak last year. It should go without saying that, while judges aren’t free from scrutiny or protest, they and their families should be free from physical harm.
But we don’t need the chief justice of the United States to tell us that; anyone who disagrees wouldn’t listen to him, anyway. It would have been more valuable to the public for Roberts to address, to literally any degree, any of the issues that the American people are concerned about when it comes to the court, whose approval ratings have plummeted. Plus, the new law that Roberts touted has been criticized by media and watchdog groups for shielding information related to judges. So, while it seems harmless to applaud a law that protects judicial security, the chief effectively dismissed concerns about public accountability — continuing a troubling theme of his tenure.
And on the subject of the seemingly harmless hiding something more sinister, there’s the manner in which Roberts laid out his judicial security theme. By way of background, the chief writes his reports with historical anecdotes to set up whatever point he wants to make. He set this latest report against the backdrop of Brown v. Board of Education, the landmark 1954 school desegregation case, widely considered one of the court’s greatest decisions. Roberts recounted the story of a judge, Ronald Davies, who was sent to implement the ruling in Arkansas, casting Davies as a hero who, despite his wife’s fear for his safety, was “uncowed.”
That’s great. Really. But it’s troubling that Roberts tried, even implicitly, to wrap his court in the legacy of Brown and the fight for racial integration. Indeed, that legacy is still being fought over explicitly today — for example, in the affirmative action cases that were argued this term and are likely to be decided by late June. As The New York Times reported ahead of arguments in October:
Both sides claim the mantle of Brown, which is widely thought to be the court’s finest moment. The challengers say the decision requires admissions policies to be colorblind, dooming race-conscious programs at Harvard and the University of North Carolina. The universities respond that Brown meant to do away with a racial caste system that subjugated Black students, and that the decision surely allowed efforts to assemble varied student bodies to ensure educational diversity.
Roberts is firmly in the “colorblind” camp. One of his best-known lines is from a 2007 case about schools and race, in which he wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” So when the court most likely does away with affirmative action this term or further weakens it, Roberts may well view that decision in line with a colorblind progression. That tension — ignorance vs. reality — is at play in other cases this term, too, including a voting rights dispute from Alabama. When that one was argued in October, Justice Ketanji Brown Jackson explained to the state’s lawyer that its race-neutral approach didn’t make sense.
The voting and affirmative action cases have something else in common: The Legal Defense Fund — the organization founded by Thurgood Marshall, who argued Brown and later served as a justice — is litigating against the colorblind notion in both cases. Roberts, who cited Marshall positively in his report’s recitation of Brown, no doubt knows this. But as with his failure to mention any of the ethical or other problems engulfing his court, Roberts used his pen to write another bedtime story to tuck himself in at the end of a tough year, choosing to whitewash rather than confront his court’s sordid legacy.