In a new report, Chief Justice John Roberts details several critical concerns that he feels threaten the ability of our judicial system to carry out justice impartially and according to the rule of law.
At the end of each year—only hours before a new year begins—Roberts releases his “Year-End Report on the Federal Judiciary.” Think of it as a written “State of the Judiciary” address. In this latest report, he focused on “four areas of illegitimate activity that … threaten the independence of judges on which the rule of law depends.”
What are those threats? According to Roberts, they’re “(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.”
The first two categories should be uncontroversial. No judges or their families should face violence or threats of violence for simply doing their jobs. And as the chief justice recounts, current efforts to intimidate judges by “protesting” outside of their homes or doxxing them (publicly releasing otherwise private information about them) must be stopped, too.
And while he doesn’t name any particular politicians, he urges public officials (Chuck Schumer? Sheldon Whitehouse?) to use temperance when criticizing the courts because of the “dangerous reactions by others” such statements might prompt.
So far, so good.
But it’s the latter two points that have drawn questions, criticisms, and intrigue from those who have read the report.
While the chief justice laments the rise of disinformation (whatever that ill-defined term means) and the judiciary’s “peculiarly ill-suited” ability to combat it, it’s his statements buried halfway through his report that might be of interest to those watching the upcoming TikTok case the Supreme Court will hear in only a few weeks.
For those unfamiliar, Congress passed and President Joe Biden signed into law the Foreign Adversary Controlled Applications Act in April 2024 that identifies China and several other countries as “foreign adversaries” and prohibits apps controlled by those countries from being used in the United States. Particularly concerning is the ability of those countries to directly push or use an algorithm (computer code) to select what content U.S. users will see.
Under the new law, TikTok, with its ties to communist China, has to be sold or shut down by Jan. 19, 2025. TikTok says this violates the First Amendment, but lower federal courts have disagreed. So, in mid-December (likely around the time the chief justice was working on his year-end report), TikTok asked the Supreme Court to intervene. While the court declined to put the law on hold, it did agree to hear the case with lightning speed and hold oral arguments on January 10th.
Against this backdrop, the chief justice’s take on disinformation in his report becomes even more interesting. He says that “the modern disinformation problem is magnified by social media, which provides a ready channel to ‘instantly spread rumor and false information.’” Moreover, he says:
Much more is needed—and on a coordinated, national scale—not only to counter traditional disinformation, but also to confront new and growing concern from abroad. In recent years, hostile foreign state actors have accelerated their efforts to attack all branches of our government, including the judiciary.
In some instances, these outside agents feed false information into the marketplace of ideas. For example, bots distort judicial decisions, using false or exaggerated narratives to foment discord within our democracy … [B]ecause these actors distort our judicial system in ways that compromise the public’s confidence in our processes and outcomes, we must as a Nation publicize the risks and take all appropriate measures to stop them.
Was the TikTok case on Roberts’ mind when he wrote this? Who knows. But it wouldn’t be a stretch to suggest it.
While we don’t know whether he will agree with the lower courts that the TikTok divestiture law doesn’t violate the First Amendment, we should have a better idea of where he stands after the oral arguments. But based on his year-end report, it certainly seems like he might not be sympathetic to TikTok’s claims.
Finally, in a last cryptic section of his report, he warns that the “final threat to judicial independence is defiance of judgments lawfully entered by courts of competent jurisdiction.” He goes on to allege that within “the past few years … elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings.”
Who are those officials? And what have they said? Are there any specific incidents Roberts has in mind? He leaves us guessing on all counts.
But the chief justice, as the head of the federal judicial branch, likely overstated his case about this supposed threat. It’s true as a general rule that officials should follow court orders (more than that, really—they should follow court orders absent their own strongly held constitutional concerns).
But there may be cases where other actors in our system of government feel obligated not to follow those orders. After all, don’t the president and Congress have their own independent duty to ensure that their actions are constitutional? The Framers of our Constitution thought so. And while rare, it is possible to envision a scenario where another governmental actor could make the argument that following a court’s order would cause him or her to violate the Constitution, and so following such an order is thus forbidden.
Perhaps this is a reminder that just as the chief justice warns us to take threats to judicial independence seriously, so too, should we take the threat of judicial supremacy seriously.
It’s clear that certain current members of the Supreme Court do take such a threat seriously as they work to restore the court to its proper role of interpreting laws and the Constitution in disputes between identifiable litigants in specific cases instead of making broad moral pronouncements unmoored from the text of the Constitution or the history behind it. To do the latter is the rule of judges, not the rule of law.
It’s clear that the federal judiciary has its work cut out for it in 2025. So, stay tuned.
