John Roberts attacks court criticism that he decides lacks a "credible basis" as "illegitimate"

Conflating violence against judges with broad criticism the court faces for its extremism, the chief justice ultimately sends a chilling end-of-year report.

Chief Justice John Roberts decided to take on critics of the U.S. Supreme Court in his annual end-of-year report on Tuesday with a disingenuous half-response that is nonetheless instructive — and disturbing — for what he does say.

On the last day of the year, the chief justice of the United States traditionally releases his end-of-year report. It generally addresses a topic of the year in a vague and uninspiring way, leading to little coverage and even less change. This year, however, the nine pages from Roberts come across as more of a lashing out than a reasoned report.

While acknowledging that “the courts are no more infallible than any other branch,” Roberts spent the second half of the report conflating violence and lies with legitimate criticism. He does so, moreover, while completely ignoring the ethical questions that have swirled around the court and Roberts’s leadership of it over the past two years, as well as substantive opposition to the court’s rulings.

The end result is a chilling, if vague, condemnation by Roberts of the widespread opposition to the extremism exhibited by the high court in its decisions and the ethical failings of justices responsible for those decisions.

Roberts first set up boilerplate support for dissent, writing:

In a democracy—especially in one like ours, with robust First Amendment protections—criticism comes with the territory. It can be healthy. As Chief Justice Rehnquist wrote, “[a] natural consequence of life tenure should be the ability to benefit from informed criticism from legislators, the bar, academy, and the public.”

Then, however, he quickly pulled back, asserting — and sounding more than a bit like Justice Sam Alito did when criticizing critics of the shadow docket — that “not all actors engage in ‘informed criticism’ or anything remotely resembling it.”

To that, Roberts continued:

I feel compelled to address four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.

This is Roberts’s point in this once-a-year moment he is given — to highlight what he views as “illegitimate” criticism of the court.

Violence is unacceptable, of course, but by including that in his report, Roberts then shifted the ground in a way that allowed him to tie everything to violence — all the while ignoring the court’s own role in creating the majority public disapproval that the court faces.

The remainder of Roberts’s areas of “illegitimate” criticism are shaded areas, where he mixed what appear to be illegitimate or at least highly questionable actions with what I would say are acceptable or even important criticism of the court.

After discussing physical threats and attacks, Roberts shifted to doxing. Within that, however, he included “angry” calls to “the judge’s office” — a governmental office — as an apparent example of criticism that the chief justice of the United States considers “illegitimate.”

Then, in the low-water mark of Roberts’s report, he made what I think is an extremely concerning comment, coming from the head of the federal judiciary:

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.

Putting aside the questionable, subjective nature of assessing whether there is a “credible basis” for such claims, by providing no examples, Roberts was damning all manner of utterly legitimate, appropriate, and even necessary speech from public officials as illegitimate intimidation.

That is chilling and will be used by bad-faith actors on the right to damn such legitimate speech — a fact that Roberts undoubtedly knows.

After a sentence that I believe is referencing U.S. District Judge Aileen Cannon — someone correct me if I’m wrong¹ — [Update, January 3: Zack Ford convincingly suggested that the facts closely track a situation involving U.S. District Judge Susie Morgan and Louisiana Gov. Jeff Landry.] — Roberts continued:

Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed. Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.

In a final section, Roberts addressed “defiance of judgments lawfully entered by courts of competent jurisdiction” — but ultimately acknowledged that this issue, thus far, is only able to be illustrated by the fact that a “sporadic” number of elected officials have “raised the specter” of this extreme response over the “past few years.” He, again, did so providing no specifics from these past few years — instead only highlighting opposition to desegregation and allowing that to stand in for whatever he was purporting to criticize on Tuesday.²

So, what I take from Chief Justice John Roberts’s report to the nation is that judges are supposed to be able to handle criticism, but not too much and not in a way that Roberts doesn’t like, and he will only vaguely tell us what that means, but if criticism crosses that invisible line it is illegitimate.

Got it.

The words “ethics” or “ethical” do not appear even once in Roberts’s report.

That’s not all.

TikTok thoughts?

Chief Justice Roberts also — in an extremely questionable section of the report — appears to argue in favor of action like the Protecting Americans from Foreign Adversary Controlled Applications Act, if not the act itself, writing that “hostile foreign state actors have accelerated their efforts to attack all branches of our government, including the judiciary.“

In response, he wrote, “[B]ecause these actors distort our judicial system in ways that compromise the public’s confidence in our processes and outcomes, we must as a Nation publicize the risks and take all appropriate measures to stop them.“

The court received briefing over the constitutionality of the law purporting to address “foreign adversary controlled” applications on December 27, Roberts on December 31 is writing that “we must as a Nation … take all appropriate measures to stop [hostile foreign state actors]” taking action to “distort judicial decisions” in media, and the court is set to hear arguments in the case challenging the law on January 10.

The connection between the two arguments is concerning, at best.

In the Justice Department’s brief defending the law, government lawyers wrote, “[T]he government also has a compelling interest in preventing covert manipulation of the TikTok platform by the [People’s Republic of China], which could engage in such malign influence operations using TikTok to undermine the United States.“

In Roberts’s report, he wrote of the “efforts to attack“ the branches of the U.S. government, “In some instances, these outside agents feed false information into the marketplace of ideas,” referencing “bots” that “distort judicial decisions, using fake or exaggerated narratives to foment discord within our democracy.”³

1. The sentence reads: “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.”

2. This paragraph was added after initial publication, with the final update at 7:40 p.m.

3. This section was expanded after initial publication, with the final update at 7:40 p.m.