WASHINGTON – Chief Justice John Roberts made a case Friday for maintaining the independence of the federal judiciary after a year in which the other branches of the government eyed changes big and small to the way the courts do their business.
Roberts used an annual year-end report on the federal judiciary to draw attention to one of his predecessors: William Howard Taft, the 27th president of the United States who went on to serve as chief justice – the only person in history to hold both jobs.
“He understood that criticism of the courts is inevitable, and he lived through an era when federal courts faced strident calls for reform, some warranted and some not,” Roberts wrote of Taft in his nine-page report. “As chief justice, Taft took vital steps to ensure that the judicial branch itself could take the lead in fulfilling that duty.”
Roberts’ message wasn’t hard to glean: The judiciary can take care of itself.
The report came at the end of a year in which a commission created by President Joe Biden studied a wide range of potential changes to the Supreme Court, including the possibility of adding justices to the nine-member bench or setting term limits. The panel was created in response to calls on the left to blunt the impact President Donald Trump’s three nominees to the court, where conservatives now enjoy a 6-3 advantage.
The commission, which wrapped up its work in early December, noted “profound disagreement” over adding justices and made no recommendations.
Congress, meanwhile, is considering legislation that would change how the federal courts are run, including some bills that have bipartisan support. Lawmakers have advanced a measure that would make opinions and other legal documents free online. Another bill would require federal judges to provide additional information about their financial investments.
That legislation, which has already passed the House, gained momentum this year after an investigation by the Wall Street Journal found more than 130 federal judges oversaw court cases involving companies in which they or their family owned stock. Roberts wrote in his annual report that judiciary officials were responding to the story by increasing training and reviewing software judges use to identify financial conflicts of interest.
“Let me be crystal clear: the judiciary takes this matter seriously,” Roberts wrote, adding that the “violations likely entailed unintentional oversights in which the judge’s conflict-checking procedures failed to reveal the financial conflict.”
Roberts’ response was unlikely to satisfy advocates who have called for significantly more transparency from federal judges, including members of the Supreme Court.
“Chief Justice Roberts is taking a page from his old playbook: Acknowledging institutional deficiencies in the judiciary but telling the public that only we judges can fix them,” said Gabe Roth, executive director of Fix the Court, a nonpartisan group that has pushed for greater transparency and other changes to federal courts.
“The problems of overlooked financial conflicts and sexual harassment are endemic and harm the public’s trust in our courts,” Roth said. “So Congress has every right to step in and, via legislation, hold the third branch to account, which I expect to happen in 2022.”
Roberts, who has tried to steer the court clear of partisan politics throughout much of his tenure, made no mention of criticism that has been lobbed directly at the Supreme Court for its handling of major controversies on its emergency docket – or “shadow docket” to the high court’s critics. That pushback grew this summer when the court allowed a Texas ban on most abortions after six weeks of pregnancy to remain in effect.
Without oral argument or signed opinions, the court also unwound Biden’s eviction moratorium, required the Biden administration to keep migrants seeking asylum in Mexico, and rebuffed a series of challenges to state vaccine mandates.
Since then, the court has sent signals it is prepared to respond to the criticism. Most recently, it took the unusual step of scheduling oral arguments for Jan. 7 in a high-profile emergency challenge to Biden’s federal COVID-19 vaccine-or-testing mandate. The court also held subsequent arguments over the Texas abortion ban and issued a signed opinion on Dec. 10 that once again allowed the law to remain in effect.
Roberts also used his annual report to discuss “inappropriate behavior in the judicial workplace.” Allegations of sexual harassment and discrimination within the federal court system have been amplified by a lawsuit brought by a former public defender from North Carolina that is pending in the Virginia-based U.S. Court of Appeals for the 4th Circuit.
Olivia Warren, a former law clerk to Judge Stephen Reinhardt of the U.S. Court of Appeals for the 9th Circuit, also drew attention to the issue when she told members of Congress in 2020 that she and other female clerks were routinely sexually harassed and that she was afraid to report it. Reinhardt died in 2018.
Congress is considering legislation to extend federal prohibitions on discrimination in the workplace to judicial employees who are currently not covered by those laws. Roberts wrote that he appreciated “that members of Congress have expressed ongoing concerns” and said judicial officials “remain fully engaged” in addressing the issue.
“The judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government,” Roberts wrote.