Every December, the chief justice of the Supreme Court of the United States composes a “Year-End Report on the Federal Judiciary.” Despite the apparent ambition indicated by its title, it is meant to be boring. It is meant to be anodyne. It is not supposed to be the judicial version of the State of the Union so much as a trite message about how “great” things are going on the bench, usually with some boilerplate stats that show how hard judges are working.
On first read, John Roberts’s 2021 review does not disappoint. Opening with a history lesson about the Judicial Conference—an advisory body founded 100 years ago that oversees the administration of the courts—it has all the stylistic markings the media consistently praises Roberts for: It is good-natured, reassuring, and banal to the point of hokey. Never mind that things are far from OK within the judiciary—that the judicial branch has been captured by an army of conservative hacks and the Supreme Court has veered so sharply to the right that even the general public has noticed, dragging its poll numbers to record lows. Roberts’s nine-page report concerns itself with none of this. To the untrained eye, it reads as totally innocuous.
I know better, however. Roberts’s annual review has all the charms of an old country goose: ordinary and unassuming from a distance, but an irritable, irascible beast that will peck your eyes out if you get too close.
Roberts fashions it as an earnest plea for the “institutional independence” of the judiciary—or “the Judiciary’s power to manage its internal affairs.” Toward this end, he extols the virtues of the Judicial Conference and the notion that the courts can and should police themselves. But like a child who agrees to be grounded before the full extent of their misdeeds can be revealed, Roberts isn’t making this suggestion for some aw-shucks innocent reason. He raises the issue of judicial independence because Congress is finally considering reining in the rampant corruption he himself refuses to stop and punishing the ethics violators he refuses to hold accountable. Of course Roberts wants people to think the judiciary should police itself, because that means judges will not be policed at all.
The issue that seems to have sparked Congress’s concern—and Roberts’s pushback—is a scandal that rocked the judiciary last year. In September, a Wall Street Journal investigation revealed that 131 federal judges improperly heard cases involving companies whose shares the judge or members of the judge’s family held. Since that initial article (which covered only cases heard between 2010 and 2018), the Journal has reported that 136 judges subsequently informed the parties in 777 lawsuits that they should have recused themselves and that the cases could now be reassigned to other judges or reopened. The corruption uncovered by the Journal is a violation of a Watergate-era law that prohibits judges (or members of their family) from owning an interest, however small, in a company that is litigating in front of them. The violations are too numerous to be chalked up as one-off errors and speak to a pervasive disregard for the rules and a culture of impropriety.
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Congress recognized this right away. The House held a hearing in October on making judges’ financial disclosure forms available to the public (as they are for elected officials), which would help interested parties identify judges who should not be hearing their cases instead of waiting for The Wall Street Journal (or the judges themselves) to do it. The Senate Judiciary Committee has proposed modernizing judicial ethics rules and disclosure requirements. And Senator Elizabeth Warren and Representative Pramila Jayapal have expressed interest in legislation that would impose civil sanctions on judges who fail to recuse themselves when they should.
Roberts refuses to brook any of this. In his year-end report, he hits back against the possibility of congressional interference by trying to make people believe the whole problem can be solved with more webinars. “Collectively,” he writes, “our ethics training programs need to be more rigorous. That means more classtime, webinars, and consultations. But it also requires greater attention to promoting a culture of compliance, even when busy dockets keep judicial calendars full.”
Roberts takes much the same approach to what he calls “inappropriate behavior in the judicial workplace” (which I can only assume refers to sexual harassment, though Roberts declines to name it). Despite consistent reports of sexual harassment and misconduct in the judicial branch, Roberts claims, not for the first time, that “inappropriate workplace conduct is not pervasive within the Judiciary.” He then goes on to suggest that expanded guidance and training should resolve the few cases he is willing to admit actually happen. What won’t be necessary is congressional interference. “I appreciate that Members of Congress have expressed ongoing concerns on this important matter,” he writes, before issuing a final brush-off.
Even the obviously hokey bits have troubling undertones. The report is framed by a discussion of William Howard Taft. Roberts presents Taft as a chief justice who, despite having been president, upheld the principles of judicial independence. But history remembers Taft’s time on the court as one that was terrible for workers: The man literally struck down a tax on companies that used child labor. Taft’s most famous case is one in which he upheld the president’s right to dismiss federal officials without Senate approval, and let’s not forget that, as president, Taft all but refused to appoint African Americans as federal officers and dismissed many of those who held office under his predecessor. That’s the man Roberts chose to highlight at the end of 2021.
I’d call Roberts’s year-end statement “brazen,” but he knows that most people in the media aren’t aware of Taft’s full history or the recusal scandal or the options for ethics reforms. And he knows that even if people did know these things, Democrats in Congress and the White House lack the strength or the vision to rein him and his cohorts in.
Roberts’s cries for judicial independence are actually demands that the judiciary be placed above accountability. I guess some branches of government get to be more equal than others.
