60. The Chief Justice's Year-End Report ... From 2003

It would be easy to critique the Chief Justice's year-end report for (once again) going out of its way to say very little. Instead, a look at a prior example of a year-end report that said much more.

Happy New Year—and welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday (including holidays), I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

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On the Docket

Other than the Chief Justice’s Year-End Report (more on that below), nothing formal came out of the Court last week. On Thursday, the Colorado Republican Party filed a cert. petition (and a motion to expedite), asking the justices to (quickly) review the Colorado Supreme Court’s ruling that former President Trump is disqualified from appearing on Colorado election ballots. The plaintiffs in the Colorado case filed their own motion to expedite, as well, and Trump himself is expected to file his cert. petition challenging the same ruling by Thursday, and perhaps as early as tomorrow. Thus, we may see quick action from the Court, at least on the requests to expedite the certiorari stage of the proceedings. (For more on the awkward position in which the Court now finds itself, see the December 21 issue.)

Nothing else is expected from the Court this week, although there are still the pending emergency applications in the Idaho abortion litigation that the Court will, presumably, dispose of sometime soon. Given the delay, my best guess is that the Court will deny the requests to freeze a lower-court ruling that had blocked a part of Idaho’s abortion ban, but with separate opinions concurring in and/or dissenting from the denial. There’s also a pending emergency application in an arbitration case in which Chief Justice Roberts has called for a response (which is due on Wednesday). Otherwise, we next expect formal output from the Court next Monday at 9:30 ET (orders from this Friday’s Conference), followed by the beginning of the January argument session at 10 ET.

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The One First “Long Read”: A More Meaningful Year-End Report

I wrote last year about the tradition of the Chief Justice filing a “Year-End Report on the Federal Judiciary” on New Year’s Eve—including how it started (Chief Justice Burger wanted to have his own “State of the Union”); and how, starting in 2009, Chief Justice Roberts stopped using the medium to do anything other than tell relatively anodyne (if well-written) stories about the federal courts and to report statistics on their workload.

In those respects, at least, the Chief Justice’s 2023 year-end report doesn’t disappoint. With nary a word (or even hint) about any of the controversies swirling around the Court, or its declining public support, or the increasingly significant role it is likely to play in the 2024 election cycle, the Chief’s annual missive focuses on the challenges posed to courts by … artificial intelligence—framed as part of a broader history of the evolution of technology in the federal courts.

As usual, it’s a delightful read. But other than perhaps finally abandoning his misbegotten suggestion that the job of a judge is to simply call “balls and strikes” (from the report: “legal determinations often involve gray areas that still require application of human judgment”), the Chief Justice’s seven-page report goes out of its way to make no headlines—a result we’ve all been conditioned to expect.

Rather than just re-up the criticism I offered of this (post-2008) trend from last year’s issue, I thought I’d offer an example of a year-end report that aspired to do something more by choosing, at random, to look at the report from exactly 20 years ago, filed by Roberts’s predecessor—Chief Justice William Rehnquist. (The 2003 report is also the oldest one that is available through the Supreme Court’s website.) And the contrast is striking.

At the heart of Rehnquist’s 2003 report is a sustained discussion of “The Relations Between the Congress and the Judiciary,” the core of which is a detailed critique of Congress’s lack of consideration of federal judges’ views as it debated and adopted the PROTECT Act, a 2003 statute that, in Rehnquist’s words, “ma[de] some rather dramatic changes to the laws governing the federal sentencing process.” You should read the full discussion for yourself, but the heart of it is Rehnquist’s concern that, in enacting significant legislation respecting federal criminal sentencing and the role of federal judges therein, Congress did not seek out, or take heed of, the views of the federal judiciary. As he wrote,

It is, of course, the prerogative of Congress to determine what to consider in enacting a statute. But it surely improves the legislative process at least to ask the Judiciary its views on such a significant piece of legislation. It is Congress's job to legislate; but each branch of our government has a unique perspective, and taking into account these diverse perspectives improves the process.

To drive the point home, Rehnquist devotes much of the rest of his discussion to a history of more robust legislative-judicial cooperation in statutory reforms directed at the courts—cooperation that did not just usually redound to the benefit of the final product, but that tended to help strengthen the respect between the coordinate branches. As he closed,

Congress, by design, is accountable to the people and, in a Republic, has a responsibility to hold other branches accountable as well. Members of Congress, and their constituents, may see the administration of justice and operation of the courts from different perspectives than do judges, and judges are bound to respect those perspectives. Judges, though, have a perspective on the administration of justice that is not necessarily available to members of Congress and the people they represent. Judges have, again by Constitutional design, an institutional commitment to the independent administration of justice and are able to see the consequences of judicial reform proposals that legislative sponsors may not be in a position to see. Consultation with the Judiciary will improve both the process and the product.

Whatever folks think about the PROTECT Act or the process by which Congress debated and enacted it (if you think about it all), it’s fairly remarkable, viewed through a more current lens, for the Chief Justice of the United States to devote the crux of his annual report to a sustained critique of one of the other branches of government. Yes, Rehnquist was defending the courts’ turf by criticizing Congress for court-directed reforms without proper consultation. But the moral of the story was that both branches are at their best when they are in productive, regular conversation with each other. That is a message, both in its substance and in its simple existence, that would’ve meant quite a lot had it also come from Rehnquist’s successor. And it’s an unhappy reflection of where we are that there was absolutely no chance we’d hear anything like it in the year-end report for 2023.

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SCOTUS Trivia: Chief Justice Hughes Addresses a Joint Session of Congress

Among other things, Chief Justice Rehnquist’s 2003 year-end report quotes from an address that then-Chief Justice Charles Evans Hughes delivered to a joint session of Congress on March 4, 1939—to mark the 150th anniversary of the beginning of the first Congress assembled under the U.S. Constitution.

The March 4, 1939 Joint Session of Congress, at which President Roosevelt spoke just after Chief Justice Charles Evans Hughes (who is pictured sitting alongside the other seven then-serving justices). Photo Credit: Library of Congress

I believe that this is the only time in U.S. history that a justice has addressed a joint session of Congress (beyond participating in inaugurations and other ceremonies). And, either way, as we enter into a new year, Hughes’s speech is worth reprinting in full (the last two paragraphs, in particular), even if it isn’t technically “trivia”:

The most significant fact in connection with this anniversary is that after 150 years, notwithstanding expansion of territory, enormous increase in population and profound economic changes, despite direct attack and subversive influences, there is every indication that the vastly preponderant sentiment of the American people is that our form of government shall be preserved.

We come from our distinct departments of governmental activity to testify to our unity of aim in maintaining that form of government in accordance with our common pledge. We are here not as masters, but as servants, not to glory in power, but to attest our loyalty to the commands and restrictions laid down by our sovereign, the people of the United States, in whose name and by whose will we exercise our brief authority. If as such representatives we have, as Benjamin Franklin said, “no more durable preeminence than the different grains in an hourglass,” we serve our hour by unremitting devotion to the principles which have given our Government both stability and capacity for orderly progress in a world of turmoil and revolutionary upheavals. Gratifying as is the record of achievement, it would be extreme folly to engage in mere laudation or to surrender to the enticing delusions of a thoughtless optimism. Forms of government, however well contrived, cannot assume their own permanence. If we owe to the wisdom and restraint of the fathers a system of government which has thus far stood the test, we all recognize that it is only by wisdom and restraint in our own day that we can make that system last. If today we find ground for confidence that our institutions which have made for liberty and strength will be maintained, it will not be due to abundance of physical resources or to productive capacity, but because these are at the command of a people who still cherish the principles which underlie our system and because of the general appreciation of what is essentially sound in our governmental structure: ·

With respect to the influences which shape public opinion, we live in a new world. Never have these influences operated more directly, or with such variety of facile instruments, or with such overwhelming force. We have mass production in opinion as well as in goods. The grasp of tradition and of sectional prejudgment is loosened. Postulates of the past must show cause. Our institutions will not be preserved by veneration of what is old, if that is simply expressed in the formal ritual of a shrine. The American people are eager and responsive. They listen attentively to a vast multitude of appeals and, with this receptivity, it is only upon their sound judgment that we can base our hope for a wise conservatism with continued progress and appropriate adaptation to new needs.

We shall do well on this anniversary if the thought of the people is directed to the essentials of our democracy. Here in this body we find the living exponents of the principle of representative government, not government by direct mass action, but by representation which means leadership as well as responsiveness and accountability.

Here, the ground-swells of autocracy, destructive of parliamentary independence, have not yet upset or even disturbed the authority and responsibility of the essential legislative branch of democratic institutions. We have a national government equipped with vast powers which have proved to be adequate to the development of a great nation, and at the same time maintaining the balance between centralized authority and local autonomy. It has been said that to preserve that balance, if we did not have States we should have to create them. In our 48 States we have the separate sources of power necessary to protect local interests and thus also to preserve the central authority, in the vast variety of our concerns, from breaking down under its own weight. Our States, each with her historic background and supported by the loyal sentiment of her citizens, afford opportunity for the essential activity of political units, the advantages of which no artificial territorial arrangement could secure. If our checks and balances sometimes prevent the speedy action which is thought desirable, they also assure in the long run amore deliberate judgment. And what the people really want, they generally get. With the ultimate power of change through amendment in their hands they are always able to obtain whatever a preponderant and abiding sentiment strongly demands.

We not only praise individual liberty but our constitutional system has the unique distinction of insuring it. Our guaranties of fair trials, of due process in the protection of life, liberty, and property—which stands between the citizen and arbitrary power—of religious freedom, of free speech, free press and free assembly, are the safeguards which have been erected against the abuses threatened by gusts of passion and prejudice which in misguided zeal would destroy the basic interests of democracy. We protect the fundamental rights of minorities, in order to save democratic government from destroying itself by the excesses of its own power. The firmest ground for confidence in the future is that more than ever we realize that, while democracy must have its organization and controls, its vital breath is individual liberty.

I am happy to be here as the representative of the tribunal which is charged with the duty of maintaining, through the decision of controversies, these constitutional guaranties. We are a separate but not an independent arm of government. You, not we, have the purse and the sword. You, not we, determine the establishment and the jurisdiction of the lower Federal courts and the bounds of the appellate jurisdiction of the Supreme Court. The Congress first assembled on March 4, 1789, and on September 24, 1789, as its twentieth enactment, passed the Judiciary Act—to establish the judicial courts of the United States—a statute which is a monument of wisdom, one of the most satisfactory acts in the long history of notable congressional legislation. It may be said to take rank in our annals as next in importance to the Constitution itself.

In thus providing the judicial establishment, and in equipping and sustaining it, you have made possible the effective functioning of the department of government which is designed to safeguard with judicial impartiality and independence the interests of liberty. But in the great enterprise of making democracy workable we are all partners. One member of our body politic cannot say to another—“I have no need of thee." We work in successful cooperation by being true, each department to its own function, and all to the spirit which pervades our institutions—exalting the processes of reason, seeking through the very limitations of power the promotion of the wise use of power, and finding the ultimate security of life, liberty, and the pursuit of happiness, and the promise of continued stability and a rational progress, in the good sense of the American people.

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Happy Monday, everyone! I hope that you have a great week—and a great 2024.

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