As New Year’s Eve traditions go, this one is pretty tame. At 6 p.m., exactly when one might release news if the goal is the smallest possible audience, Supreme Court Chief Justice John Roberts delivered his annual report on the state of the federal judiciary.
The previous 12 months had certainly been consequential. A flag flown by insurrectionists at the Capitol flew before the home of Justice Samuel Alito, who then refused to recuse himself from cases involving Jan. 6. Clarence Thomas acknowledged that he should have reported luxury vacations gifted to him by a billionaire, which several legal experts suggested could have run afoul of the law. Roberts himself slow-walked a case involving charges against Trump for January 6, then in a stunningly awful decision, awarded him absolute immunity for prosecution for “official acts.” He greased his path back to power complete with a get-out-of-jail-free card.
Americans responded by expressing a staggering lack of faith in the judiciary and the Supreme Court. According to a new Gallup poll, confidence in the judicial system not only plunged to a record low of 35 percent in 2024, but this was one of the fastest and steepest collapses Gallup has measured anywhere in the world, across the many decades it has asked this question. The most comparable cases? Nations under newly authoritarian rule or the grasp of civil war.
Now, in this moment of victory, Roberts and the GOP supermajority want it every way possible: They seek to impose out-of-the-mainstream and deeply unpopular views on the entire nation and also have them accepted as objective, historical readings of the law, rather than grubby politics.
None of this, however, earns a mention in Roberts’s nine-page report. The word “ethics” does not appear at all. Neither does any awareness that the justices’ own behavior – and a broader conservative legal movement that has worked for decades and built a billiondollar dark money entity to capture the courts – have played a role in birthing a crisis of confidence so massive that nearly 70 percent of Americans (and sometimes more) now back stringent ethics codes, term limits, and mandatory retirement ages for the justices.
No, John Roberts is exasperated and disappointed with all of us. He’s bothered not by the stench of corruption but the criticism, which, he sniffs, is not informed or “anything remotely resembling it.” The mere suggestion of political bias in a decision “without a credible basis for such allegations” is an effort to “intimidate judges.” This not only threatens the independence of the courts, Roberts writes, but creates the potential for violence against judges.
This hackneyed slippery slope argument – conflating entirely fair criticism of the court with fears of political violence – would be laughed out of any serious courtroom. Indeed, it’s difficult to say whether this report is more disingenuous or oblivious regarding the dire situation created by this crisis of confidence. It’s not the doxing of judges.
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The solution is not for critics to keep silent – even if Donald Trump has suggested they be jailed. It is for those who profess concern about the Court’s integrity and credibility to step forward and address ethical failures, excessive partisanship, and, you know, celebratory spiking of the football at Federalist Society galas and while being feted overseas.
Roberts likely doesn’t even believe what he is selling. He was long ago cast in the role of front man for the conservative takeover. The conservative legal project is his life’s work. When Roberts testified before the Senate Judiciary Committee 20 years ago, he pledged to be nothing but a humble umpire, merely calling balls and strikes without any rooting interest in the game, dedicated to nothing except upholding the rule of law. He charmed the Senate and then the Supreme Court media with this modest, midwestern institutionalist act.
This choir boy act curdled long ago. How rude of us to suggest that the conservative legal project’s long, patient strategy to win supemacy over the courts has been a political project at all. How discourteous to observe that Roberts’s umpiring act is just that – a means to obscure his role as the most effective Republican politician of his generation, delivering victories on abortion, gun rights, and the regulatory state through the courts, couched in faux-constitutionalese, that his side could never win at the ballot box.
Today, majorities of Americans look at Roberts’s handiwork and a Supreme Court hand-picked from approved lists of conservative ideologues and see the courts as an unelected super- legislature operating above a system of checks and balances. They see a court that upends precedent, rewrites the law as they wish it to appear, eviscerates cherished voting rights protections embraced by bipartisan Congressional majorites, and tilts elections toward the wealthy and the patrons on the right. The nation long ago recognized the justices should wear red and blue robes, and that some should be festooned with patches of those who fund their lavish lifestyles, like race car drivers proclaim their sponsors. Alas, the Roberts court won’t even offer as much transparency as NASCAR. They act as partisans, then hide behind their robes when criticized for egregious misbehavior.
The chief justice, meanwhile, every additional scandal and every new revelation about the justices’ unbecoming financial habits, continues to resist calls to protect judicial independence from the threat that is otherwise clear to all: The untouchable, unelected justices themselves who have asserted themselves as the final arbiter, and become the ultimate source of GOP political power. At some point, everyone must conclude that John Roberts is simply OK with it.
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Conservatives have not hidden their court-capture strategy. Donald Trump promised to select justices from an approved list of Federalist Society ideologues whose views were known to all because that was how they made the list in the first place. The court has delivered a series of democracy-damaging decisions that have unleashed billions in dark money, gutted the Voting Rights Act, and protected and enabled coast-to-coast gerrymanders of U.S. House and state legislative districts, all of which has helped ensured GOP wins even with fewer votes. Roberts himself delivered the crushing blow to the VRA with a dishonest edit of actual precedent and by making up a legal tradition of equal sovereignty among states. Now, in this moment of victory, Roberts and the GOP supermajority wants it every way possible: They seek to impose out of the mainstream and deeply unpopular views on the entire nation and also have them accepted as objective, historical readings of the law, rather than grubby politics.
In this respect, Roberts’s report echoes something Justice Neil Gorsuch said this summer while promoting a new book. Court reform, he suggested on Fox News, even the term limits supported so broadly, threatened judicial independence. The Fox interviewer, naturally, did not follow up to ask whether Gorsuch believed that the $10 million spent by conservatives in 2016 to keep his seat warm after Justice Alito died in 2016, or the additional $10 million spent on his confirmation, represented judicial independence or just a stunning return on investment for his work overthrowing the regulatory state on behalf of the wealthy benefactors who installed him.
The state of the federal judiciary? One might look instead to the words of Abraham Lincoln, who declared in his first inaugural that “the candid citizen must confess that if the policy of the government upon the vital questions of the day is to be irrevocably fixed by the decisions of the supreme court” that “the people will have ceased to be their own rulers.”
John Roberts, meanwhile, appeared on C-SPAN in 2009 and noted that “the most important thing for the public to understand is that we’re not a political branch of government. They do not elect us. If they do not like what we are doing, it’s more or less just too bad.”
You can say that again. In his year-end report, John Roberts just did.
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