Chief Justice John Roberts urged continued vigilance for the safety of judges and justices in an annual report published Saturday, after a tumultuous year at the US Supreme Court.
“A judicial system cannot and should not live in fear,” Roberts wrote.
While drawing attention to judicial security, however, the chief justice bypassed other controversies, including calls for new ethics rules directed at the justices, and an update on an investigation launched eight months ago into the unprecedented leak of a draft abortion opinion last spring that unleashed nationwide protests.
Avoiding direct mention of any specific controversy, Roberts praised judges who face controversial issues “quietly, diligently and faithfully,” and urged continued congressional funding devoted to security.
Roberts said that while there is “no obligation in our free country” to agree with decisions, judges must always be protected.
“The law requires every judge to swear an oath to perform his or her work without fear or favor, but we must support judges by ensuring their safety,” he wrote.
Besides his duties on the high court, Roberts presides over the Judicial Conference, a body responsible for making policy regarding the administration of the courts, and he releases a report each New Year’s Eve on the state of the judiciary.
Some critics of the court were hoping that Roberts would use his annual report to concretely address other concerns that arose over the last several months.
The report comes as public opinion of the court has reached an all-time low. The justices, who are on their winter recess, took on blockbuster cases this fall concerning the issues of voting rights and affirmative action. In the second half of the term, they will discuss issues such as immigration and President Joe Biden’s student loan forgiveness program.
Roberts made no direct mention, for instance, of the status of an ongoing investigation into the leak last May of the draft opinion overturning Roe v. Wade.
The disclosure – and the eventual opinion released the following month – triggered protests across the country, including some staged outside of the justices’ homes. In June, a man was arrested near the home of Justice Brett Kavanaugh and later charged with attempted murder of a Supreme Court justice. According to court documents, the man, Nicholas Roske, told investigators that he was upset over the leaked draft opinion overturning Roe.
In addition, the court building was surrounded by 8-foot security fences that were only brought down ahead of the new term at the end of August.
In May, Roberts launched an investigation into the leak, but has not provided any public updates.
Roberts did not bring up ethics reform in the year-end report, but others had hoped he would use it to address the ongoing calls for a more formal code of ethics directed at the justices.
“There is no doubt that judicial security is paramount,” said Gabe Roth, the executive director of a group called Fix the Court, which is dedicated to more transparency in federal courts. Roth said he thought Roberts should have done more this year to shore up the public’s faith in the ethics of the court.
“As things stand now, there is no formal code of conduct for the Supreme Court and justices themselves get to decide how they conduct themselves both on and off the bench without any formal guiding principles,” Roth said.
Back in 2011, Roberts dedicated his year-end report to the issue of ethics, addressing such criticism.
“All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations,” Roberts at the time. He noted that the justices can consult a “wide variety” of other authorities to resolve specific ethical issues including advice from the court’s legal office.
Federal law also demands a judge should disqualify himself if his “impartiality might reasonably be questioned.”
Roth said that this year the court’s integrity has been tested in ways it rarely has in the past, between the leaked opinion and the activities brought to light concerning Virginia “Ginni” Thomas – a long-time conservative activist and the wife of Justice Clarence Thomas.
In March, the House select committee investigating the January 6, 2021, attack on the US Capitol had in its possession more than two dozen text messages between Ginni Thomas and former Trump White House chief of staff Mark Meadows.
The text messages, reviewed by CNN, show Thomas pleading with Meadows to continue the fight to overturn the 2020 presidential election results.
Roth and others say that Justice Thomas should have recused himself – including from a January case in which the high court cleared the way for the release of presidential records from the Trump White House to the committee. Thomas was the sole dissenter.
“Federal law says that recusal is required when a justice’s impartiality could be reasonably questioned, and that was clearly the case here,” Roth said.
Ginni Thomas ultimately voluntarily testified before the committee, but she was not mentioned in the panel’s final report released last week.
Thomas told the committee that she regretted the “tone and content” of the messages she was sending to Meadows, according to witness transcripts the panel released on Friday, and that her husband only found out about the messages in March 2022.
Thomas said she could “guarantee” that her husband never spoke to her about pending cases in the court because it was an “ironclad” rule in the house, according to the transcript. Additionally, she said that Justice Thomas is “uninterested in politics.”
Ginni Thomas’ lawyer, Mark Paoletta, released a statement last week saying she was “happy to meet” with the committee to “clear up misconceptions” but that the committee had “no legitimate reason to interview her.”
He called her post-election activities after Trump lost in 2020 “minimal.”
“Mrs. Thomas had significant concerns about potential fraud and irregularities in the 2020 election, and her minimal activity was focused on ensuring that reports of fraud and irregularities were investigated,” Paoletta said.
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