8. The Chief Justice's Year-End Report

The annual missive was originally intended to stimulate dialogue with Congress. It's become something far less productive—and a symptom of a broader (and problematic) insularity

Happy New Year—and welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it:

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On the Docket

It should be a quiet week at the Court—at least until Friday, when the Justices meet for their regular Conference, and may add a few more disputes to the (still under-filled) roster of cases to be argued and decided during the current Term. The Court will be back on the bench next Monday, for the beginning of its January argument session.

As last week’s newsletter predicted, the big news was the Justices’ 5-4 ruling on Tuesday granting an emergency application from 19 states to keep the “Title 42” immigration policy in effect. In the same order, the Court granted certiorari to decide whether the states should have been allowed to intervene in the lower courts to defend the policy, although it went out of its way to make clear that it will only decide the intervention question; whether the district court’s permanent injunction barring enforcement of Title 42 was correct is … apparently not something the Court wants to consider at this juncture:

I must confess that I find that logic (such as it is) hard to follow. Whether or not the states should have been allowed to intervene in the lower courts, the only possible basis for granting an emergency stay is if the lower courts’ denial of intervention is harming the states in some way that can’t be remedied through an ordinary appeal. And the only argument for harm to the states here is harm from allowing the underlying injunction to go into effect (i.e., harm from allowing the “Title 42” policy to end). It seems to me that there’s no way to conclude that the states can show such harm unless one believes that there is a substantial likelihood that the policy will be upheld on the merits. If the policy is doomed, how can the states be legally harmed by not staying its demise now? (Ditto if the Court is taking no position on the merits of the policy.) At the very least, it would have been more than a little helpful for the majority to say a little more about why it was granting relief.

Moreover, by ruling this way, the majority gets to keep the policy in place until at least the middle of this year (if not later) without having to say anything about its legality. As I explain in far more depth in my forthcoming book, “The Shadow Docket,” this has become an all-too-common feature of the Supreme Court’s unexplained orders respecting emergency applications—shaping policy without making law. There’s also the majority’s curious statement that “the stay itself does not prevent the federal government from taking any action with respect to that policy.” That’s true so far as it goes, but as I explained last week, there is a separate nationwide injunction against the Biden administration’s proposed rescission of the policy that is preventing the government from taking those steps. The careful word choice in the order is … hiding the ball.

All of this is to say that I think Justice Gorsuch’s two-page dissent (joined by Justice Jackson) has it exactly right (Justices Sotomayor and Kagan also dissented, but didn’t join Gorsuch’s opinion). Justice Gorsuch and I might disagree about whether the pandemic still justifies other public health-related measures. But the notion that expelling migrants is necessary to prevent the spread of COVID has no factual predicate today (assuming it ever had one). And because it doesn’t, there’s just no case for granting a stay.

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The One First Long Read: Two Cheers for the Year-End Report

The other big (and expected) development last week was the publication, at 6 p.m. on New Year’s Eve, of the Chief Justice’s “Year-End Report on the Federal Judiciary.” The Chief’s brief narrative report (as opposed to the annual caseload data), as just about every media account has noted, focused almost exclusively on judicial security, and said virtually nothing about any of the other respects in which 2022 was one of the most tumultuous years in the Court’s modern history (if not ever), or any other broader phenomena / concerns impacting the federal judiciary writ large.

Instead, as has been the Chief Justice’s norm in these reports since early in his tenure, the narrative builds off of a telling (and well-conveyed) historical anecdote (in this case, the courageous efforts of Judge Ronald Davies in implementing the Brown desegregation decision in Little Rock), and has one major theme (in this case, thanking Congress for passing judicial security reforms; and thanking those on the front lines of providing judicial security). Like most of Chief Justice Roberts’s 18 such reports, the short statement says far more than nothing. But given the events of the past year, it’s easy to come away from the brief report wishing that it had said … more.

Some of that is a reflection of the times we live in. But for me, much of it is also a reflection of the original purpose that these reports were meant to serve—and how far the annual exercise has moved away from it. The tradition was inaugurated by Chief Justice Warren Burger on January 3, 1976.¹ The animating idea was to provide a regular vehicle through which the Chief Justice, acting on behalf of the entire federal judiciary (and not just the Supreme Court), could convey concerns to Congress and invite a dialogue about potential reforms. No statute, regulation, or rule requires these reports; they have simply become an annual tradition.

Chief Justice Burger delivering one of his annual “State of the Judiciary” speeches at the annual meeting of the American Bar Association

For Burger, the paramount concern was modernizing the judiciary. But the topics shifted from year to year. And as Burger remarked in 1984, “The Reports have become a tradition, serving as useful tools to communicate the concerns of the judiciary. The effort, as always, is to focus on the year’s most important developments and on current and future needs. I have been encouraged to learn that Congressional leaders view the Reports as helpful in legislating.”

In 1995, Chief Justice Rehnquist shifted from an itemized list of concerns and possible reforms to what he described as more of a “leitmotif.” But he kept the focus on interbranch dialogue and on potential judicial improvements with which Congress could assist. From the budget to judicial vacancies (and the need for new judgeships) to jurisdictional reforms to salaries and benefits, the year-end report became something of a “State of the Union” for the federal courts. Indeed, Rehnquist made front-page headlines with his 1997 report, which implored the Republican-controlled Senate, for the good of the judiciary, to give up-or-down votes to President Clinton’s then-languishing judicial nominees. It was a remarkable, and meaningful, public, interbranch shot across First Street, N.E.

It was Chief Justice Roberts, in his 2009 year-end report, who broke from that tradition, filing a report that made no such recommendations or requests. In the Washington Post, Bob Barnes noted that he had “abandoned” the approach that had become typical in such reports. Or as Tony Mauro put it for the Legal Times, “Imagine if the president, instead of giving a full State of the Union address, sent a note to Congress telling the legislative branch that life is good, all is O.K., and let’s catch up next year.”

The narrative portion of the Chief Justice’s 2009 year-end report was … brief

As much as that approach surprised observers at the end of 2009, it has become more common for most of the 13 years since. Even Roberts’s 2021 report, which flagged the problem of litigants hand-picking judges to hear their cases, framed the issue in incredibly modest terms (as a problem in patent cases, specifically—even though it’s been just as big a deal elsewhere), and didn’t actually recommend any reforms (even though there are obvious ways Congress can stop such rampant “judge-shopping”).

The same report included a not-so-subtle message to Congress that, when it came to serious shortcomings in financial disclosures by sitting judges (exposed only through excellent reporting by the Wall Street Journal), and even more serious concerns about inappropriate behavior in judicial workplaces, the courts could clean up their own mess just fine, thank you. Indeed, the foil Roberts used for that report was Chief Justice Taft—and his fight to make the courts more independent.

Chief Justice Roberts on the floor of the House of Representatives in advance of President Biden’s 2022 State of the Union address

In that respect, this year’s report was more of the same. The closest it came to inviting any kind of interbranch dialogue was thanking Congress for legislation it had already passed—with no suggestion that more work remains to be done. There was no broader discussion of the state of the federal judiciary (or the consequences of its increasing polarization). There was no discussion of trends in the shape and size of dockets in the lower courts or the Supreme Court. Indeed, there was no real “report” beyond the unannotated statistics provided at the end.

Judicial security is, of course, an important and commendable priority—especially at the end of a year that included the attempted assassination of a sitting Justice. But we ought to be able to walk and chew gum at the same time. When, year after year, the Chief Justice’s year-end report fails to identify any areas in which the judiciary could benefit from reform, and fails to propose any topics for the political branches to so much as debate with regard to improving judicial performance and/or other features of contemporary judicial decisionmaking, it suggests that one of two things must be true: Either everything truly is hunky dory in the judicial branch, or the Chief Justice is simply uninterested in pursuing an interbranch conversation over the myriad respects in which it isn’t.

I, for one, think that such a dialogue could be of enormous benefit—not just for the public in general, but for public perception of the judiciary, specifically. For too long, we’ve lost sight of the useful role that interbranch dialogue has historically played in defining the relationship between the federal judiciary and the political branches (a dialogue that, for most of the country’s history, not only helped the courts to operate better, but also helped to keep them from running too far off the rails). Even for those less worried about the current moment in the life of the federal courts, the growing insularity of the institition ought to be a bug, not a feature. After all, there are plenty of reforms worth discussing no matter where one falls on the ideological spectrum.

But if we are (or, at least, if Chief Justice Roberts is) giving up on the Court itself trying to be a part of such an ongoing conversation, it may be time to ask whether the year-end report continues to serve any useful purpose—other than giving the Supreme Court’s press corps something to write about on New Year’s Day.

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SCOTUS Trivia: Chief Justice of … What?

Given the substantive focus of this week’s issue, I couldn’t resist going down one of the most pedantic of SCOTUS rabbit holes: The Chief Justice’s formal title.

The Judiciary Act of 1789 created two distinct offices: “Chief Justice of the Supreme Court of the United States” and “Associate Justice of the Supreme Court of the United States.” Thus, John Jay, John Marshall, Roger Brooke Taney, and their contemporaries all held the title “Chief Justice of the Supreme Court.”

But as the federal judiciary grew, the Chief Justice became increasingly responsible not only for presiding over the Supreme Court, but presiding over all of Article III. For that reason, and to also reflect his coordinate status as head of one of the co-equal branches, Chief Justice Salmon Chase, in 1866, began using a different title: “Chief Justice of the United States.” Congress subsequently memorialized the title in the relevant statutes, so that, upon his confirmation in 1888, Melville Fuller was the first holder of the Court’s middle seat whose commission bore the broader, and more administrative, title. (I’ll save for another issue the story of how then-President Taft decided to buck tradition when it came time to nominate Fuller’s successor—and the remarkable reason why he did so.)

President Grover Cleveland’s 1888 nomination of Melville Fuller was the first to use the (new) formal title “Chief Justice of the United States”

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Happy Monday, everyone! I hope you have a great week.

1. Burger had given a series of speeches in the early 1970s echoing similar themes, several of which he styled as annual reports on the work of the judiciary. But the first formal “year-end” report was the one he issued shortly after the end of 1975. The tradition of handing the report down on New Year’s Eve began on December 31, 1978.