After a summer of marches outside the Supreme Court, and a physical threat against one its members, Chief Justice John Roberts thanked Congress Saturday for strengthening judicial security.
But Roberts’ annual year-end report was noteworthy for what he did not mention: any update on the Court’s internal investigation into the public leak of a draft opinion in the contentious abortion decision striking down Roe v. Wade.
The 5-4 final ruling in June reversing the nationwide constitutional right to the procedure sparked weeks of angry protests, an 8-foot-tall unscalable metal fencing surrounding the court building and increased round-the-clock security at the justices’ homes.
An armed California man was arrested in June outside Justice Brett Kavanaugh’s Maryland home and charged with attempted assassination of a Supreme Court member. He told officers her was angry at the leaked draft opinion that would dramatically shift abortion rights back to the states.
Roberts, in his written summary of the federal judiciary, noted the 65th anniversary of riots outside Little Rock Central High in Arkansas, following plans to segregate public schools.
‘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. A judicial system cannot and should not live in fear,’ Roberts wrote. ‘The events of Little Rock teach about the importance of rule by law instead of by mob.’
Congress in recent weeks passed a law increasing security and privacy protections for federal judges and their families.
The act was named after Daniel Anderl, son of federal Judge Esther Salas. The 20-year-old was shot to death in 2020 at his New Jersey home in what was meant to be an attack on the judge by a disgruntled former litigant who found the family’s address online.
‘I want to thank the Members of Congress who are attending to judicial security needs — these programs and the funding of them are essential to run a system of courts,’ Roberts wrote.
As head of the federal judiciary, the chief justice of the United States summarized a dramatic year at the Supreme Court and the 107 district and appeals courts across the country.
Besides noting security concerns in general terms, Roberts did not address the controversy surrounding the abortion ruling, or the eroding public confidence in the court itself.
A Fox News poll in September found just 42% of those surveyed approving of the Supreme Court’s job performance — with a majority 52% disapproving. Just five years ago, the numbers were reversed — 58% approving, 31% disapproving.
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And when it comes to the controversial abortion ruling, our poll found just 32% approving of the decision reversing Roe v. Wade, with 63% disapproving. And 57% support making abortion legal all or most of the time.
Many progressives in particular view the current court as too political, following former President Trump’s appointments of three justices in his single term, tilting the court to a 6-3 conservative majority.
‘Chief Justice Roberts has expressed a concern for the institutional standing of the court and as the chief justice, that is very much a concern that he should properly have,’ said Elizabeth Wydra, president of the Constitutional Accountability Center. ‘I think the leak of the Dobbs [abortion] opinion has caused internal strife on the court. The substance of that decision has caused strife among millions of Americans, particularly women. And so we’re seeing a court that has taken a big hit in the eyes of the public and in terms of public confidence in the court.’
Questions over the court’s ‘legitimacy’ have extended to the justices themselves.
‘When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,’ Justice Elena Kagan said at a legal conference recently. ‘If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.’
As far as who leaked the draft opinion of the abortion ruling, the mystery continues.
The day after the leak was published by Politico in May, the Chief Justice appointed an internal committee led by Court Marshal Gail Curley to oversee the investigation.
Justice Neil Gorsuch in September said he expected a report to be released ‘soon,’ but the court has not publicly identified the leaker, or issued any updates.
Multiple sources previously told Fox News that the investigation into the approximately 70 individuals in the court who might have had access to the draft opinion has been narrowed. Sources say much of the initial focus was on the three dozen or so law clerks, who work directly with the justices on their caseload.
But court sources say the leak has disrupted the internal dynamics between the nine justices, who rely on discretion and a level of secrecy in their private deliberations, to do their jobs free of outside influence.
‘The leak of that draft opinion was just an absolutely terrible, cataclysmic event for the court,’ said Thomas Dupree, a former deputy assistant attorney general in the Bush 43 administration. ‘I think it was a breach of trust, it was obviously a breach of integrity. And I think it’s going to take a long time for the scars from that leak to heal.’
New Face on the Court
2022 also the history-making confirmation of Justice Ketanji Brown Jackson, as the first Black female member of the court.
She has wasted little time putting her imprint on the bench. A survey of oral arguments since October found Jackson to be the most active questioner of counsel in the public sessions, at times offering lengthy challenges of the conservative positions offered by lawyers making their case.
In perhaps the mostly closely-watched appeal of the term, an affirmative action challenge to race-conscious university admissions policies, Jackson in October worried about the consequences if minority applicants would be barred from talking about race in their admissions essays many schools require.
‘I’m worried that that creates an inequity in the system with respect to being able to express your identity and, importantly, have it valued by the university when it is considering the goal of bringing in different people.’
The 52-year-old Jackson is one of 99 lifetime judicial appointments by President Biden, more than his two predecessors in their first two years in office.
And Biden — who has made nominating judges a political priority — has 83 court vacancies to fill in the new year, likely to be helped by a Democrat-controlled Senate.
The president hopes his choices will pay off in the long-term, believing judges who share his ideology would help advance his broader legislative and executive agenda.
In the short-term, the Supreme Court will remain a 6-3 conservative majority.
Rulings are expected in coming months on hot-button topics like :
Affirmative action, and whether universities can continue to consider race when using individualized admissions criteriaFree speech vs. workplace discrimination, and whether business owners can refuse services to LGBTQ+ customers based on religious liberty claimsVoter redistricting, and the discretion of state legislatures to create congressional election boundariesImmigration, and the ability of GOP-led states to argue keeping the Title 42 policy in place, that restricts asylum requests for migrants seeking entry along the southern borderAnd a challenge to Biden’s student loan forgiveness program, that has provided debt relief to borrowers affected by the COVID-19 pandemic
All these pending issues, the internal leak investigation, and questions over the court’s public standing will test the nine justices, and the chief justice in particular, who long sought to preserve the judiciary’s reputation as free from partisan politics.
While his year-end report may have deftly sidestepped hard questions, remarks Roberts made in September revealed his growing concern.
‘If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is,’ Roberts said. ‘Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.’