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.
It was good to see the SCOTUS Chief Justice acknowledge that the text of our Constitution was designed to reflect the spirit of our Declaration of Independence. He made the common sense decision to acknowledge the self-evident truth that “the concrete provisions of the 1787 Constitution fell short of honoring the abstract principles set forth in the 1776 Declaration—most notably, in regard to the Declaration’s promise of liberty and equality.” He also correctly highlighted some respects in which the concrete provisions of our Constitution (Amendments XIII through XV) vastly improved on the 1787 version regarding the liberty and equality of most men.
Even so, Chief Justice Roberts completely neglected other crucial concrete provisions of our Constitution (Amendments XIX, XXIV and XXVI) that vastly improved on the 1787 or the 1860’s version regarding the liberty and equality of all the people. Chief Justice Roberts (like many current SCOTUS justices) hides or obscures the far greater self-evident truth about the nexus between “the key passage” of the Declaration of Independence and multiple “concrete provisions” of our Constitution. Certain constitutional amendments radically re-defined the very concept of “the People.” They did so in a way that was designed to repeatedly and emphatically overrule (as Chief Justice Roberts acknowledged) “the Supreme Court,” itself, and “its infamous decision in the Dred Scott case” (which asserted absurd falsehoods about who could be citizens and exercise the sovereign powers of citizens).
Self-evidently, however, the amendments to our Constitution, above, did much more than merely seek to eliminate the effects of slavery. Those amendments were directed directly at establishing sovereignty, i.e., the sovereignty of the people (over ourselves and over our public servants), including by expanding the scope of the people who are sovereign.
The Fourteenth Amendment clarified the sweeping scope of "citizens." The Fifteenth Amendment prohibited discrimination against certain citizens "on account of race, color, or previous condition of servitude." The Nineteenth Amendment prohibited discrimination against more citizens "on account of sex." The Twenty-Sixth Amendment prohibited discrimination against other citizens "on account of age" if they were at least "eighteen years of age." The Twenty-Fourth Amendment prohibited discrimination against other citizens on account of wealth ("by reason of failure to pay any poll tax or other tax").
And Amendment XXIV has a second, intertwined clause that's especially worth remembering today. It expresses that federal primaries are like the other federal elections listed. This takes them out of the category of private party affairs & makes them public elections. Only Alaska (& Skokie, IL) have as yet made primaries nonpartisan, 100% public elections equally open to all voters and candidates. 49+ states are out of compliance.
I appreciate your observation about the limited audience the Chief Justice was appealing to with his year-end report. I wrote my own article on what, if anything, the Chief Justice was signaling with his report. Is he having second thoughts about his own role in enabling Trump? Or is he just trying to placate the increasingly angry public? We should know by the end of this term if the report has any true significance.
Giving Chief Justice Roberts the benefit of the doubt, his audience seemed to be all judges and all lawyers. He emphasized the equal power of the judiciary and judges' duty to be independent of all except the legal authorities and facts that our Constitution requires or permits. That seemed to be the point of his misrepresentation (again) that our "Constitution" somehow "grant[ed federal judges] life tenure."
Nothing in our Constitution granted any public servant a term for "life." Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Alexander Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton).
Even so, Chief Justice Roberts rightly emphasized that our Constitution expressly protects judges' tenure and compensation not for their benefit but for ours. "The Constitution" did so "to safeguard the independence of federal judges and ensure their ability to serve as a counter-majoritarian check on the political branches. This arrangement, now in place for 236 years, has served the country well."
Chief Justice Roberts acknowledged that "the concrete provisions of the 1787 Constitution fell short of honoring the abstract principles set forth in the 1776 Declaration," but "the concrete provisions of the 1787 Constitution" did emphasize equality in crucial respects. Article VI emphasizes that all "Judges in every State shall be bound" by "the supreme Law of the Land," which is limited to our "Constitution," federal "Laws" that are "made in Pursuance thereof; and all Treaties." Moreover, absolutely all "Members" of federal and "State Legislatures, and all executive and judicial Officers, both of the United States and of [all] States" are equally "bound" to "support [our] Constitution."
It is well worth noting that the expression "judicial Officers" includes every lawyer admitted to practice law in any court. So every lawyer admitted to practice law in any court is required to swear or affirm that he or she will support our Constitution in all conduct before such court.
Thank you for giving us a possible somewhat optimistic interpretation of the Chief's history lesson. If only the concerns you mention weren't belied by his actions and silences.
This was an excellent Substack. I want to know as much as possible about our system of justice . I have learned so much from this publication. I especially enjoy your tales of the history of the Supreme Court.
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 would like to see a year end "minority" report. Sotomayor seems to be the most outspoken in their defense and would have a more sobering assessment of Supreme Court rulings and its support of democracy, freedom and liberty.
As usual, Mr. Vladeck offers another very well-presented article. The last line, however, reveals the truth of this entire subject.
"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."
The answer is clear, despite the desires of millions of citizens across our country, he does not want to do so! Even more importantly, neither does our Congress! Our desires, much like those of all other once democracies, mean little once the dictator attains power. In only the first year, this Court, our Congress, and the current Administration have marched in march-step, except for the last ruling against the deployment of State controlled National Guard units, toward one goal: the overthrowing of our democracy and the establishment of an authoritarian government.
That action, now fully embedded in the process of governing, openly flouts every law we may have considered useful in the management of a democracy. The SCOTUS members, the President, and any number of others in government openly accept money from all walks of life, and those "contributors" openly receive their rewards with equal consideration.
We all know what is happening. There are no more questions that need to be answered or even raised, for that matter. Until the Chief Justice decides "HE" has had enough, and that America cannot fall further into third-world governing, we watch with horror as these people destroy our country. Yet, even if he does finally stand up to his responsibility, the question is, will he be allowed to do so?
Thank you for so consistently applying your energies and brain power in order to decipher the meanings (and the avoidance) in these judicial communications. Also thank you for using a minimum of legalize so that those of us who are not lawyers can easily follow your arguments.
Do you have any indication of whether Roberts or other members of the Supreme Court read what you and other critics are saying? I would give a lot if if individual judges would be willing to respond to direct questions and observations so that there would be some way to hold their feet to the fire. The overworked liberal justices! Do you imagine there’s any direct conversation between them and the conservatives?
As a member of the general public, what can I do to pressure members of the Supreme Court to discuss this directly?
I think Roberts' primary audience was and is Trump (and the Administration writ large) and his primary objective is to avoid doing or saying anything which could result in a direct Constitutional confrontation with Trump. He will make vague references to fundamental constitutional and historical principles, but will not affirmatively or authoritatively assert those principles as controlling, either in his address or holdings, for fear that Trump will directly defy the Court. I suspect Roberts believes that by using nuance, rather than holdings, he can preserve the autonomy and authority of the Court in the long run. And yes, there is a Neville Chamberlain comparison implied here: An honorable and well meaning man, attempting to protect his country by taking a moderate course in the face of evil. Of course that moderation may well be viewed as weakness, not prudence, and produce precisely the type of confrontation which was sought to be avoided.
I am concerned, of course, about the current Court's majority's willingness to adapt the Constitution to the ends they desire - but, frankly, I am more concerned that this administration will attempt to convene a Constitutional Convention and try to amend the Constitution in ways that reduce or eliminate the ability of future Courts and future Congresses to constrain the behavior of this or similarly inclined future administrations
I understand your concern but it is very difficult to amend the US Constitution (see Article V). The President has no role in the amendment process. As a first step, either Congress passes an amendment (2/3rd of each house) or 2/3rds of the state legislatures petition Congress to establish a constitutional convention. Whether proposed by Congress or by a Convention, an amendment must ultimately be ratified by 3/4th of the states. See https://www.archives.gov/federal-register/constitution
Early in this century the Koch brothers promoted a state-held Constitutional Convention with no role for Congress. They distorted Article V to appear to exclude Congress from this path and convinced a number of states to apply to Congress for it. But in 2015 a scholar publicly corrected their error (I think it was in The Atlantic). Several states withdrew their applications. It's now all but a dead question.
The common unspoken statement from both Roberts and the Republican Congress is Why buy the cow, when you can get the milk free? They are place holders in Trump’s regime. Nothing more.
I think the audience for the report IS Trump and his regime. All the blathering about Paine, immigrants, Constitution, etc., is window dressing. To cover the fact that Roberts has caved to Trump just like Congress did.
Summarizing history while allowing the regime to ignore law and the Constitution is nothing more than fluff.
If you're correct that Roberts is writing to Trump et al, could it be he is reminding the executive branch that the USA was founded on and continues to embrace liberty and justice for all, the rule of law etc ... and that even the Supreme Court has a limit to how much illegal behavior it will tolerate? (Am I wishful thinking?)
It was good to see the SCOTUS Chief Justice acknowledge that the text of our Constitution was designed to reflect the spirit of our Declaration of Independence. He made the common sense decision to acknowledge the self-evident truth that “the concrete provisions of the 1787 Constitution fell short of honoring the abstract principles set forth in the 1776 Declaration—most notably, in regard to the Declaration’s promise of liberty and equality.” He also correctly highlighted some respects in which the concrete provisions of our Constitution (Amendments XIII through XV) vastly improved on the 1787 version regarding the liberty and equality of most men.
Even so, Chief Justice Roberts completely neglected other crucial concrete provisions of our Constitution (Amendments XIX, XXIV and XXVI) that vastly improved on the 1787 or the 1860’s version regarding the liberty and equality of all the people. Chief Justice Roberts (like many current SCOTUS justices) hides or obscures the far greater self-evident truth about the nexus between “the key passage” of the Declaration of Independence and multiple “concrete provisions” of our Constitution. Certain constitutional amendments radically re-defined the very concept of “the People.” They did so in a way that was designed to repeatedly and emphatically overrule (as Chief Justice Roberts acknowledged) “the Supreme Court,” itself, and “its infamous decision in the Dred Scott case” (which asserted absurd falsehoods about who could be citizens and exercise the sovereign powers of citizens).
Self-evidently, however, the amendments to our Constitution, above, did much more than merely seek to eliminate the effects of slavery. Those amendments were directed directly at establishing sovereignty, i.e., the sovereignty of the people (over ourselves and over our public servants), including by expanding the scope of the people who are sovereign.
The Fourteenth Amendment clarified the sweeping scope of "citizens." The Fifteenth Amendment prohibited discrimination against certain citizens "on account of race, color, or previous condition of servitude." The Nineteenth Amendment prohibited discrimination against more citizens "on account of sex." The Twenty-Sixth Amendment prohibited discrimination against other citizens "on account of age" if they were at least "eighteen years of age." The Twenty-Fourth Amendment prohibited discrimination against other citizens on account of wealth ("by reason of failure to pay any poll tax or other tax").
yes
Well said!
And Amendment XXIV has a second, intertwined clause that's especially worth remembering today. It expresses that federal primaries are like the other federal elections listed. This takes them out of the category of private party affairs & makes them public elections. Only Alaska (& Skokie, IL) have as yet made primaries nonpartisan, 100% public elections equally open to all voters and candidates. 49+ states are out of compliance.
I appreciate your observation about the limited audience the Chief Justice was appealing to with his year-end report. I wrote my own article on what, if anything, the Chief Justice was signaling with his report. Is he having second thoughts about his own role in enabling Trump? Or is he just trying to placate the increasingly angry public? We should know by the end of this term if the report has any true significance.
Giving Chief Justice Roberts the benefit of the doubt, his audience seemed to be all judges and all lawyers. He emphasized the equal power of the judiciary and judges' duty to be independent of all except the legal authorities and facts that our Constitution requires or permits. That seemed to be the point of his misrepresentation (again) that our "Constitution" somehow "grant[ed federal judges] life tenure."
Nothing in our Constitution granted any public servant a term for "life." Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Alexander Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton).
Even so, Chief Justice Roberts rightly emphasized that our Constitution expressly protects judges' tenure and compensation not for their benefit but for ours. "The Constitution" did so "to safeguard the independence of federal judges and ensure their ability to serve as a counter-majoritarian check on the political branches. This arrangement, now in place for 236 years, has served the country well."
Chief Justice Roberts acknowledged that "the concrete provisions of the 1787 Constitution fell short of honoring the abstract principles set forth in the 1776 Declaration," but "the concrete provisions of the 1787 Constitution" did emphasize equality in crucial respects. Article VI emphasizes that all "Judges in every State shall be bound" by "the supreme Law of the Land," which is limited to our "Constitution," federal "Laws" that are "made in Pursuance thereof; and all Treaties." Moreover, absolutely all "Members" of federal and "State Legislatures, and all executive and judicial Officers, both of the United States and of [all] States" are equally "bound" to "support [our] Constitution."
It is well worth noting that the expression "judicial Officers" includes every lawyer admitted to practice law in any court. So every lawyer admitted to practice law in any court is required to swear or affirm that he or she will support our Constitution in all conduct before such court.
I often wonder if Robert’s has regrets. History will not be kind to him.
Thank you for giving us a possible somewhat optimistic interpretation of the Chief's history lesson. If only the concerns you mention weren't belied by his actions and silences.
Hello steve, just thought I would point you at a related post :
From someone who challenges the exact faultline he’s talking about, his report makes more sense when viewed through my lense
https://randoliberal.substack.com/p/what-justice-roberts-2025-report
I was very impressed by your insights: thank you for your article. I will now re-read the year-end report.
thank you - interested to hear your thoughts when you've re-read the report
This was an excellent Substack. I want to know as much as possible about our system of justice . I have learned so much from this publication. I especially enjoy your tales of the history of the Supreme Court.
Nothing else of note? But a typo was corrected in Alito's dissent in the Illinois case!
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 would like to see a year end "minority" report. Sotomayor seems to be the most outspoken in their defense and would have a more sobering assessment of Supreme Court rulings and its support of democracy, freedom and liberty.
That would add a lot to this tradition!
As usual, Mr. Vladeck offers another very well-presented article. The last line, however, reveals the truth of this entire subject.
"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."
The answer is clear, despite the desires of millions of citizens across our country, he does not want to do so! Even more importantly, neither does our Congress! Our desires, much like those of all other once democracies, mean little once the dictator attains power. In only the first year, this Court, our Congress, and the current Administration have marched in march-step, except for the last ruling against the deployment of State controlled National Guard units, toward one goal: the overthrowing of our democracy and the establishment of an authoritarian government.
That action, now fully embedded in the process of governing, openly flouts every law we may have considered useful in the management of a democracy. The SCOTUS members, the President, and any number of others in government openly accept money from all walks of life, and those "contributors" openly receive their rewards with equal consideration.
We all know what is happening. There are no more questions that need to be answered or even raised, for that matter. Until the Chief Justice decides "HE" has had enough, and that America cannot fall further into third-world governing, we watch with horror as these people destroy our country. Yet, even if he does finally stand up to his responsibility, the question is, will he be allowed to do so?
Agreed. Those who should be contributing to continuing the balance of power as our constitution dictates are derelict in their duty.
Thank you for so consistently applying your energies and brain power in order to decipher the meanings (and the avoidance) in these judicial communications. Also thank you for using a minimum of legalize so that those of us who are not lawyers can easily follow your arguments.
Do you have any indication of whether Roberts or other members of the Supreme Court read what you and other critics are saying? I would give a lot if if individual judges would be willing to respond to direct questions and observations so that there would be some way to hold their feet to the fire. The overworked liberal justices! Do you imagine there’s any direct conversation between them and the conservatives?
As a member of the general public, what can I do to pressure members of the Supreme Court to discuss this directly?
I think Roberts' primary audience was and is Trump (and the Administration writ large) and his primary objective is to avoid doing or saying anything which could result in a direct Constitutional confrontation with Trump. He will make vague references to fundamental constitutional and historical principles, but will not affirmatively or authoritatively assert those principles as controlling, either in his address or holdings, for fear that Trump will directly defy the Court. I suspect Roberts believes that by using nuance, rather than holdings, he can preserve the autonomy and authority of the Court in the long run. And yes, there is a Neville Chamberlain comparison implied here: An honorable and well meaning man, attempting to protect his country by taking a moderate course in the face of evil. Of course that moderation may well be viewed as weakness, not prudence, and produce precisely the type of confrontation which was sought to be avoided.
I am concerned, of course, about the current Court's majority's willingness to adapt the Constitution to the ends they desire - but, frankly, I am more concerned that this administration will attempt to convene a Constitutional Convention and try to amend the Constitution in ways that reduce or eliminate the ability of future Courts and future Congresses to constrain the behavior of this or similarly inclined future administrations
I understand your concern but it is very difficult to amend the US Constitution (see Article V). The President has no role in the amendment process. As a first step, either Congress passes an amendment (2/3rd of each house) or 2/3rds of the state legislatures petition Congress to establish a constitutional convention. Whether proposed by Congress or by a Convention, an amendment must ultimately be ratified by 3/4th of the states. See https://www.archives.gov/federal-register/constitution
Early in this century the Koch brothers promoted a state-held Constitutional Convention with no role for Congress. They distorted Article V to appear to exclude Congress from this path and convinced a number of states to apply to Congress for it. But in 2015 a scholar publicly corrected their error (I think it was in The Atlantic). Several states withdrew their applications. It's now all but a dead question.
The common unspoken statement from both Roberts and the Republican Congress is Why buy the cow, when you can get the milk free? They are place holders in Trump’s regime. Nothing more.
I think the audience for the report IS Trump and his regime. All the blathering about Paine, immigrants, Constitution, etc., is window dressing. To cover the fact that Roberts has caved to Trump just like Congress did.
Summarizing history while allowing the regime to ignore law and the Constitution is nothing more than fluff.
If you're correct that Roberts is writing to Trump et al, could it be he is reminding the executive branch that the USA was founded on and continues to embrace liberty and justice for all, the rule of law etc ... and that even the Supreme Court has a limit to how much illegal behavior it will tolerate? (Am I wishful thinking?)
hopefull thinking, and a reasonable interpretation