201. Who is the Chief Justice's Audience?
Reading between the lines, there's a lot to commend in Chief Justice Roberts's year-end report. Measured against the year that was, though, its subtleties are for an increasingly shrinking audience.
Welcome back to “One First,” a (more-than) weekly newsletter that aims to make the U.S. Supreme Court and related legal topics more accessible to lawyers and non-lawyers alike. Saturday marked the 200th non-bonus installment of the newsletter (although, thanks to my … misbegotten … numbering scheme, we’re up to 383 posts overall), and I’m grateful to all of you for your continued support. As ever, I hope that you’ll consider sharing some of what we’re doing with your networks:
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Not surprisingly, there was exactly one newsworthy development out of the Supreme Court last week—the clockwork release, at 6 p.m. on New Year’s Eve, of the Chief Justice’s “Year-End Report on the Federal Judiciary.” I’ve written before about both the history of this tradition and how Chief Justice Roberts has meaningfully departed from the practice of his two immediate predecessors by no longer asking Congress for … anything. Indeed, the Roberts reports have typically been remarkable only for their unremarkability, elevating to a fine art pablum packaged as historical anecdotes.
Against that backdrop, the 2025 year-end report is fascinating for its subtleties. Reading between the lines, one can find the Chief Justice of the United States standing up for immigrants; extolling the continuing aspirations of the Declaration of Independence; and reiterating the importance of judicial independence—three messages that are certainly welcome as we look ahead to the second year of the second Trump administration. The problem, though, is that one has to read between the lines to find those takeaways. Given the year that just transpired—not just the substantive behavior of the executive branch but its unprecedented hostility toward, threats against, and defiance of federal judges—this would’ve been a golden opportunity for Chief Justice Roberts to make the kind of statement that might’ve resonated across the political/ideological spectrum. By opting for subtlety, it seems worth asking exactly who the Chief Justice views as his audience these days. Not only am I increasingly unsure of the answer, but, far more importantly, I wonder if he might be, too.
More on that in a moment.
On the Docket
There were no formal rulings out of the full Court last week. Besides the Chief Justice’s year-end report, the only noteworthy action was the release, on Friday, of the oral argument calendar for February—a surprisingly light session with only seven arguments across six days, only one of which (the Hemani Second Amendment dispute) is likely to be of broader significance to non-lawyers.
The justices are next set to meet in person this Friday, when they are scheduled both for their regular Conference and for what the Supreme Court’s website calls a “non-argument session” on the bench. Those sessions can sometimes include the handing down of decisions in argued cases, but they don’t have to; no opinions came down during such a session on November 21. We’ll know more later this week, either because the Court will announce that it is expecting to hand down opinions on Friday—or because it won’t. The next regular Order List is expected next Monday at 9:30 ET, after which the Court will begin the January 2026 argument session.
Finally, on a more personal note, I’ve posted to SSRN a revised version of my attempt to look holistically at the Court’s behavior on Trump-related emergency applications during the October 2024 Term. You can download the essay, which is forthcoming in the Supreme Court Review, for free at this link. And although it’s not directly Supreme Court-related, I’ll be one of the witnesses this Wednesday afternoon at 2:30 ET, when the Senate Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights is set to hold a (twice-postponed) hearing on “Impeachment: Holding Rogue Judges Accountable.” Something tells me there will be some disagreements.
The One First “Long Read”:
An Audience of … One?
The foil for Chief Justice Roberts’s 2025 year-end report is an obvious one: this year’s 250th anniversary of the Declaration of Independence. But the way he decided to introduce his protagonist (Thomas Paine) is quietly revealing: “Two hundred fifty years ago this week, a recent immigrant to Britain’s North American colonies put the finishing touches on a manuscript in which he hoped to express ‘plain truths’ about his newly adopted home.” As Roberts puts it, Paine’s (anonymous) January 1776 publication of “Common Sense” “electrified the country and played a crucial role in stimulating a vote for independence in the Second Continental Congress six months later.” (While reading it, I could almost hear the line from Hamilton: “immigrants—we get the job done.”)
Briefly recapping the history of the drafting of the Declaration of Independence and the provenance of its signers, Roberts pointed to that document as one that “enunciated the American creed, a national mission statement, even though it quite obviously captured an ideal rather than a reality, given that the vast majority of the 56 signers of the Declaration (even Franklin) enslaved other humans at some point in their lives.” As Roberts notes, many of the Declaration’s signers were lawyers and future judges—a subtle but unmistakable nod to the role of the rule of law in promoting that “American creed.”
But Roberts didn’t stop there. Connecting the Declaration to the Constitution that followed a little more than a decade later, the Chief Justice pivoted to the role of the courts, specifically, in achieving the Declaration’s aspirations, noting that “[t]he connection between these two foundational documents could not be clearer when it comes to the judicial branch,” and describing the Constitution’s enshrinment of an independent judiciary as an “arrangement, now in place for 236 years, [that] has served the country well.”
Extolling the virtues of judicial independence is not a new theme for the Chief Justice’s year-end report, but it seems like no accident here; more than any specific substantive point, the year-end report seems centered on defending for the basic structure of our government—and the role of the courts in that structure—closing with a quote from, of all people, President Calvin Coolidge, in marking the 150th anniversary of the Declaration in 1926:
“Amid all the clash of conflicting interests, amid all the welter of partisan politics, every American can turn for solace and consolation to the Declaration of Independence and the Constitution of the United States with the assurance and confidence that those two great charters of freedom and justice remain firm and unshaken.” True then; true now.
Thus, if one looks hard enough, one can find in these seven pages an outwardly reassuring message from the Chief Justice.
The problem is … everything else that’s happened over the last 12 months. Whatever one thinks about the Trump administration, the following six points are, in my view, objectively undeniable:
The Trump administration has pushed the substantive boundaries of executive power under both statutes and the Constitution to a degree unmatched by any of its predecessors;
Congress has sat entirely on the sidelines while that’s happened, even in contexts in which the executive branch has usurped legislative power;
We’ve seen an unprecedented number of rulings from federal district courts and courts of appeals (including judges from across the ideological spectrum) blocking the Trump administration’s actions—many of which have raised alarm bells about the executive branch’s substantive and litigation behavior;
We’ve seen an unprecedented degree of hostility to those rulings from the executive branch—including (a) calls for the impeachment of judges who have ruled against the government; (b) the filing by the Attorney General of frivolous misconduct complaints against some of those judges; (c) the Deputy Attorney General referring to a “war” between the executive branch and the federal courts; (d) the White House Deputy Chief of Staff referring to judges who rule against the administration as being part of a “judicial insurrection; and (e) multiple cases in which the executive branch has openly defied coercive court orders instead of (or while) appealing them;
That hostility has manifested in a sharp rise in threats against the physical safety of federal judges—and not just through the insidious practice of “pizza doxxing” (where pizzas in the name of the murdered son of New Jersey federal district judge Esther Salas are regularly being delivered to the unlisted home addresses of myriad federal judges). Indeed, as a coalition of retired federal judges has noted, “The United States Marshals Service and other law enforcement agencies have determined that many of these threats have posed a credible danger to the judges, their loved ones, and their court staff”; and
While all of this has been happening, the Supreme Court has largely enabled the Trump administration’s behavior in the small (and carefully self-selected) subset of cases the Justice Department has taken up—not just rewarding the executive branch’s behavior but, in several cases, chastising those same lower courts for failing to divine the justices’ intent from un- (or thinly) explained rulings.
In other words, it seems fair to describe 2025 as a year of unprecedented assaults on the very constitutional structure and judicial independence the Chief Justice appears to be so invested in publicly defending. Against that backdrop, the fact that his year-end report doesn’t even indirectly allude to any of those assaults (unlike last year’s, which was at least elliptically critical of some elected officials) is, frankly, inexcusable. However much praise the Chief Justice deserved for his rare public statement last March pushing back against President Trump’s calls for impeachment of federal judges, the reality is that he has said literally nothing on that subject (or any related topic) since. Here was a golden opportunity for the Chief Justice to at least return to that theme. Instead, as someone who doesn’t do anything by accident, he passed.
All of this brings us back to the question with which I started the post: Who does the Chief Justice view as his audience? It certainly isn’t the Court’s critics—for whom the paeans to the role of immigrants in our Founding story and the indirect defense of judicial independence will be far too subtle and un-specific to be remotely mollifying. And it certainly isn’t the Trump administration (or Congress, for that matter), who somehow avoided even indirect criticism notwithstanding the events of the past 12 months. Nor is it Roberts’s colleagues in the federal judiciary—who won’t find a single word in the report that responds to their mounting (and increasingly public) frustration with the Supreme Court’s behavior.
That leaves as the potential audience (besides the Chief Justice himself) folks who support the current Supreme Court but not the Trump administration—a small cohort of conservative lawyers who might view themselves as “never Trumpers,” but who have been just as reticent to speak out against the alarming patterns described above as the Chief Justice has been. For them, reminding everyone that Thomas Paine was an immigrant and that our country was founded entirely on the premise that ours is a government of laws, and not of men, may be reassuring. But as the calendar turns to 2026, and against the backdrop of everything that has happened (and is happening), that degree of subtletly is, and will be, lost on everyone else.
SCOTUS Trivia: Chief Justice Rehnquist’s 1997 Report
The Supreme Court’s website, which really is a wonderful resource for so many things, includes digital copies of the Chief Justice’s year-end report for every year dating back to 2000. Alas, it doesn’t have Chief Justice Rehnquist’s 1997 year-end report—which provides a useful illustration of how the year-end report could be used to send a message that other government institutions receive.
In that report, Rehnquist took on the growing problem of judicial vacancies—which was exacerbated by the refusal of the Republican-controlled Senate to vote up or down on many of President Clinton’s nominees. As the New York Times reported on January 1, 1998, Rehnquist wrote that the “vacancies cannot remain at such high levels indefinitely without eroding the quality of justice.” And although he noted that delays by President Clinton in sending nominations to the Senate had contributed to the problem, his main criticism fell on the Senate itself. “The Senate is surely under no obligation to confirm any particular nominee,” Rehnquist wrote, “but after the necessary time for inquiry, it should vote him up or vote him down.” To let nominees languish, Rehnquist concluded, would imperil the federal judiciary’s ability to operate.
Rehnquist’s critiques—and the significance of a Republican-appointed Chief Justice criticizing Senate Republicans—had their desired effect; although President Clinton still struggled to get all of his judicial nominees through the Senate, the Rehnquist report helped pressure the Senate into at least moving a bit more formally on those nominations that were submitted. And it remains today a powerful example of how the year-end report, for all of its shortcomings, can be an effective opportunity for the Chief Justice to put himself (and the judiciary) above partisan politics. He just has to want to do so.
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When I read the CJ's report, it seemed to me he was speaking to an audience of one: himself. The report was a transparent attempt on Roberts's part to reassure himself that "the rule of law is strong," when any sentient observer would conclude it isn't.
I often wonder if Robert’s has regrets. History will not be kind to him.