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Tuesday, December 31, 2024
Roberts to Court critics: Be nice, be truthful, and listen to what we say
Forgive the snark, but that is the best summary of the 2024 Year End Report on the Federal Judiciary. Roberts begins with the usual historical lecture, this one on judicial independence from 1761-Present. He goes from George III interfering with colonial judges through the Declaration complaining about that interference through the Convention and The Federalist establishing life tenure through Marbury and into modern times, framing judicial independence as a necessary concomitant of judicial review. He identifies four threats to judicial review: 1) Violence; 2) Intimidation; 3) Disinformation; and 4) Threats to defy judgments.
One problem is that his framing of "intimidation" is so capacious as to cover most constitutionally protected criticism of judges and judicial decisions. Intimidation includes: disappointed litigants urging online followers to send messages to the judge; disappointed litigants claiming the judge was biased against them for various reasons; doxing of judges leading to people protesting judges at home and in public; and suggesting political bias in rulings "without a credible basis for such allegations." He finishes with this: "Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others." He segues into disinformation disconnected from intimidation, such as "distortion" of the factual or legal basis for a decision, which "can undermine confidence in the court system."
Criticism of the courts must be, as my title suggests, nice, polite, and truthful--otherwise it constitutes improper intimidation and a threat to judicial independence. Never mind that public debate may (and should) include "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Never mind that all speech directed at all people "may" cause bad people to do bad things--that cannot be the basis for silencing criticism of public officials. Never mind that Roberts does not--and cannot--explain who decides what criticisms are accurate or inaccurate and when there is sufficient basis for a charge of political bias or when a criticism crosses into "distortion." Absent any basis for measure, the answer must be "do not criticize the courts" lest that criticism become illegitimate--and dangerous-- intimidation. As with "I believe in free speech, but . . ." the but in "you can criticize the courts, but . . ." subsumes everything before it. And gives the rhetorical game away.
Roberts also uncorks this: "Our branch is peculiarly ill-suited to combat this problem, because judges typically speak only through their decisions. We do not call press conferences or generally issue rebuttals." This is a long-standing--and patently false--trope. In 2024 alone, Justice Alito, Judge Jones, Judge Duncan, and others showed that they enjoy many outlets and opportunities--including friendly press outlets--through which to issue rebuttals.
To his credit, Roberts frames the disobedience point in the right way. He does not target the Southern Manifesto as defiance of Brown itself. He focuses (properly) on lower courts' decisions post-Brown/based on Brown to integrate other schools, specific instances of governors defying those specific lower-court orders, and Eisenhower and Kennedy enforcing those lower-court orders.
Finally, Roberts pays single-paragraph lip service to the courts' responsibility for maintaining their own legitimacy--stay in their constitutionally assigned lanes, respect standing limits, and respect coordinate branches. He expresses "confiden[ce]" that judges will "faithfully discharge their duties." Put aside the conspicuous absence of any acknowledgement or awareness of the Court's ethical problems. And put aside the conservative realignment to loosen standing and expand the scope of the Court's lane, a realignmentn in which Roberts has played a role. It does not matter whether judges faithfully discharge their duties; for Roberts, any suggestion that any judge did not do so is improper intimidation and disinformation.
Posted by Howard Wasserman on December 31, 2024 at 10:41 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink
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