Last week, Chief Justice John Roberts issued his annual year-end report on the federal judiciary. A short document that aims at a general audience, it contains an appendix that summarizes the caseload of the Supreme Court and lower federal courts. The statistics summarized in the appendix mostly tell a tale of continuity, with one notable exception: civil filings in the federal district courts increased by five percent, including a 28 percent increase in personal injury cases. The report does not explain why.
The body of the report mostly praises the work of judges throughout the country in civic education. It cites official programs as well as individual volunteer efforts, singling out for special praise retired Justices Sandra Day O’Connor and Anthony Kennedy, as well as U.S. Court of Appeals for the D.C. Circuit Chief Judge Merrick Garland.
Roberts introduces his discussion of the fine current efforts of his fellow federal jurists with a historical lesson from the Founding. Excusing John Jay for writing but five of the Federalist Papers, Roberts recounts a 1788 riot during which Jay, taking up his sword to help the governor restore order, was knocked unconscious by a rock to the head. The current Chief Justice remarks of the first: “It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor.”
That is indeed an interesting story, and Roberts draws from it the lesson that there is “no place for mob violence” in our constitutional order. Yet the relevance of the tale of Jay’s injury to the somewhat anodyne discussion of civic education it prefaces is not exactly obvious. Roberts ties them together with the following lament: “we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.”
The link seems somewhat forced. The Jay story fits very well with social media’s capacity to spread falsehoods that can erupt into violence. But why is civic education the antidote? A good public understanding of our institutions is worthwhile at all times. To combat our special susceptibility to the dangers of rumor and false information, we need mechanisms for disseminating truth. The Jay story would work better as the introduction to a call for social media companies to combat fake news or a call for support for well-funded and independent journalism.
We thus have a mini-mystery. John Roberts is a precise and careful writer. He likely knew that he was fitting a square peg into a round hole; yet he did so anyway. Why? I do not know for certain, but I have a hypothesis: In this and other modest ways, Roberts hopes to counterbalance Donald Trump; he may be a closeted never-Trumper.
Further Evidence from the Year-End Report
The awkward fit between the Jay story and civic education is not the only piece of evidence that Roberts was aiming at the President. Surely Roberts knows of Trump’s use of Twitter to retweet conspiracy theories and falsehoods of his own invention. Anyone’s tweet or post has the potential to go viral, but the President’s own feed by definition spreads his views—and lies—on a “grand scale.” The Chief Justice must have known that others would read him to be criticizing the President and thus cannot be said to have unknowingly aimed at Trump.
At the end of his report, Roberts returns to the Federalist Papers to celebrate but also to warn “we should also remember that justice is not inevitable. We,”—by which he means his judicial colleagues—“should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch.”
In many contexts, such sentiments would be clichéd. But here too it is fairly easy to read between the lines and see a not-so-veiled critique of the President. Why isn’t justice inevitable? Whom do life-tenured judges have to fear? In our time, the answers to the second question and thus the first are clear: a President who demonizes and seeks to delegitimize all institutions and individuals who invoke laws and norms to block his own venal and fickle will.
The Limits of Roberts as a Member of the Resistance
In a column last month, I praised Chief Justice Roberts for pushing back against Trump’s effort to undercut the force of a ruling against him by describing it as coming from an “Obama judge.” Roberts responded that there are no “Obama judges or Trump judges, Bush judges or Clinton judges.” If I am right in reading the year-end report as further, albeit tacit, resistance to Trump’s threat to the independent judiciary and other institutions of American democracy, then I would praise Roberts again.
Yet my praise for Roberts comes with three important caveats.
First, no one should think that the resistance Roberts offers to Trump indicates any kind of a turn to the left. At best, Roberts leads from within the judiciary a muted version of the never-Trump movement that one sees among principled never-Trump conservatives like George Conway and the other lawyers who comprise the Checks & Balances organization. These brave souls rightly regard Trump as a threat to core democratic values that transcend party.
Such thinkers deserve respect and admiration from those, like me, who are not only appalled by Trump’s unfitness for office but deeply troubled by the policies he pursues. We can applaud never-Trump conservatives for their integrity, even as we oppose their substantive agenda. But we should not forget that that agenda includes items that make America less democratic and have been given a green light by John Roberts in opinions for the Court in cases involving voter suppression, extreme partisan gerrymandering, and more.
Second, the Roberts defense of judicial independence has the capacity to mislead. In truth, there are “Obama judges” and “Trump judges,” not in the crass sense that Trump uses the terms but in the important sense that the party of the President who appoints a judge serves as a pretty good proxy for that judge’s likely ideological lean over the long run. When John Roberts describes the federal judiciary as unaffected by any prior party affiliation, he strikes a blow for the rule of law, but he also tells a not-so-noble lie.
Having successfully limited President Obama’s ability to name federal judges and justices by exploiting the undemocratic representation the Senate affords, Republican senators have been racing to confirm Trump’s nominees. Judicial appointments are already a voting issue for Republicans who like how Trump has shaped the federal bench. It ought to be an equal and opposite voting issue for Democrats, but the Roberts portrayal of the judiciary as one big happy family focused on justice without politics, if accepted, would obscure the degree to which Trump and the Republican Senate are moving the federal judiciary to the right.
Third, as I have noted already in this column, the Roberts criticisms of Trump are muted and sometimes barely even perceptible except by extrapolating from hints. Against an opponent like Trump—who lies loudly and generally fights dirty—a Chief Justice who observes the norms of his office and human decency may find himself at a distinct disadvantage in reaching the general public due to the very tools of deceit that the annual report laments.
It is encouraging that the Chief Justice has the courage to stand up to the President, even indirectly. But the Chief Justice has life tenure. Like the former government officials, professors, and private-practice lawyers who make up nearly all of the never-Trump right, Chief Justice Roberts is somewhat beyond the President’s reach. For real limits on Trump’s power to stick, some Republicans facing re-election contests will need to put their jobs on the line.