The Chief Justice’s annual report on the federal judiciary is not so much an “annual report” as a pamphlet of pro-judiciary propaganda that he foists on the public every year. In 2021, Roberts closed out a year overflowing with ethical scandals by scolding the public for daring to question the judiciary’s ability to regulate itself. This year, he chose to trumpet the heroism.
Obviously, he had to go back almost three quarters of a century to find any.
In 1957, Judge Ronald Davies of the Eastern District of Arkansas ordered the integration of Little Rock Central High School as required by Brown v. Board. Folks in Arkansas didn’t like it, but the judge applied the law.
It’s a cool story. It’s also not the top judicial story of 2022.
An annual report covering the judiciary in 2022 would, one would suspect, address the Court’s dwindling legitimacy and the lingering ethical concerns throughout the judiciary. One of the judges implicated in the ethics scandal that Roberts blew off in 2021 had one of her compromised decisions challenged and the Fifth Circuit ruled that it would be too messy to unravel all the corruption and that these opinions should stand. It might even acknowledge the expanding scandals surrounding Ginni Thomas.
Or, you know, acknowledged the Dobbs leak investigation that the justices continue to wave around as some heinous crime, even though the Court is searching out the leaker with the same vigor O.J. employs for finding the real killers. There actually was a credible tip about a leaked Supreme Court opinion this year and the Supreme Court spent all of 10 seconds considering it before clumsily announcing they basically outsourced the investigation to Politico.
Shoehorned into the report, Roberts adds this curious nugget:
Judicial opinions speak for themselves, and there is no obligation in our free country to agree with them. Indeed, we judges frequently dissent—sometimes strongly—from our colleagues’ opinions, and we explain why in public writings about the cases before us.
I guess that’s true of dissents… because majority rulings don’t necessarily elicit explanation these days. The Supreme Court has gone on a shadow docket rampage reordering society without a whiff of written explanation for some time now.
But also… doesn’t this strike at the heart of why no one really cares about the leak? Because the substance of the opinion is all that actually mattered? I don’t think Roberts understands the damage he’s doing to his own fixation.
Ostensibly, the Judge Davies story is a segue for Roberts to talk about enhanced security to protect federal judges from the sort of threats leveled at Davies. Toward the end of the report, the Chief cites Judge Esther Salas, whose son Daniel was murdered by a disgruntled litigant, leading to the Daniel Anderl Judicial Security and Privacy Act.
If security was the purpose of this little homily, why wasn’t the whole thing about Judge Salas and her son? That would at least ground the piece in the 21st century. But the Chief really wanted to use this line and the tragic events surrounding Judge Salas and her family would get in the way of the Roberts narrative:
The events of Little Rock teach about the importance of rule by law instead of by mob.
Because there was no “mob” for Judge Salas. Instead, the judge faced the much more salient risk for judges that lone wackos upset over their own very personal cases have unfettered access to guns in every state. A reality that the Supreme Court exacerbated when it rewrote the Second Amendment last year. Roberts wants to talk about people protesting outside his house — something the Supreme Court explicitly ruled was constitutional when it applied to doctors providing abortions — and he has to invoke Judge Davies to sell that story.
Even the “attempted murder” of Brett Kavanaugh — a case where the public facts seem far more inchoate than those charges — couldn’t cut it for Roberts because it’s just another armed individual. Roberts is much more interested in painting picketers as a threat than addressing the possibility that the real menace out there isn’t hot button, controversial opinions that rile up the rabble, but the fact that any outlier litigant can easily acquire a gun and attack judges.
Yet there may be a simpler, more craven reason why a Wikipedia-level history lesson about 1957 makes up two-and-three-quarters pages of his three-and-a-half-page statement. John Roberts knows he’s writing a propaganda piece and he’s also clever.
Mainstream media outlets only report what’s in front of them. We can quibble the relative journalistic merits of this approach, but it’s the reality. So when the New York Times covers the annual report, it can’t avoid devoting a hefty chunk of the report to fleshing out the story of Judge Davies and Little Rock. There’s no version of the story that can avoid handing the readers a tidy account of how the courts render justice… or at least how they did in 1957. That gives the Roberts report the nice, happy frame he wants. And a lot of readers will take that noble legacy away with them.
A more discerning audience zeroes in on the fact that, in 2022, when John Roberts set out to make the federal judiciary look good, he had to launder his institution with the robe of a judge born in 1904.
2022 Year-End Report on the Federal Judiciary [Supreme Court]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.