| Last week, Chief Justice John Roberts released his 2025 Year End Report on the Federal Judiciary. Readers hoping to find therein the Chief Justice’s take on an extraordinary year of confrontation between the federal district courts and the second Trump administration or an explanation for the Supreme Court’s increased use of the emergency docket to stay lower court decisions enjoining the administration’s most aggressive actions on personnel, funding, immigration, and more will be disappointed. The Report consists of a seven-page history lesson followed by a six-page appendix that describes the “Workload of the Courts” in dry statistics. None of the leading cases litigated this past year is even mentioned, much less discussed. | | Nonetheless, those first seven pages reward careful scrutiny. Presumably moved by the impending 250th anniversary of the signing of the Declaration of Independence later this year, Chief Justice Roberts offers some thoughts on the American Revolution, the Declaration, and the Constitution. | | One such thought bears on our present moment. In two places, the Chief Justice traces the principle of an independent judiciary to the Declaration. He notes that Samuel Chase was one of two signers of the Declaration who later became Supreme Court justices and then discusses how Chase survived a Senate impeachment trial because enough Senators “concluded that disapproval of a judge’s decisions provided an invalid basis for removal from office.” Two paragraphs later, Roberts quotes one of the particular charges the Declaration leveled against George III to similar effect. It reads: “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” As the Chief Justice notes, tenure and salary protection for federal judges, as guaranteed by Article III of the Constitution, were a direct response to the Founding-era view that political control of the judiciary should be limited. | | The emphasis on judicial independence might be read as a kind of apologia in response to charges that the Roberts Court has been too accommodating of the Trump administration due to some combination of fear (of the sort of mob that the current president can inspire) and partisan sympathy. “Au contraire,” the Chief Justice can be understood to be saying. “We are calling them as we see them.” If that is the message, then it could portend important defeats for the administration. Seen in this hopeful light, the Court’s 6-3 ruling rejecting the Trump administration’s deployment of National Guard troops in Illinois, which was issued just a week before the Year End Report, is a sign of things to come. | | Jurisprudential Implications | | Whatever clues to results in future cases involving the Trump administration might or might not be found in the Chief Justice’s Year End Report, the document also warrants study for its broader jurisprudential implications. | | The Year End Report notes that the Declaration of Independence is not itself law but that it informed the drafting of the Constitution. It also observes the uncomfortable fact that the signers of the Declaration did not come close to living up to the principles it articulated, most prominently, the assertion “that all men are created equal” and thus equally entitled to “Life, Liberty, and the pursuit of Happiness.” Attempting to make sense of those sentiments, Roberts contends that the Declaration “enunciated the American creed, a national mission statement, even though it quite obviously captured an ideal rather than a reality, given that the vast majority of the 56 signers of the Declaration (even [Benjamin] Franklin) enslaved other humans at some point in their lives.” He adds that in its accommodations of slavery, “the 1787 Constitution fell short of honoring the abstract principles set forth in the 1776 Declaration.” | | The Year End Report echoes a 1987 speech marking the 200th anniversary of the Constitution, in which Justice Thurgood Marshall questioned the wisdom of the original document’s framers. Marshall argued that “the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” | | Conservatives were not amused. William Bradford Reynolds, who was at the time the Assistant Attorney General for Civil Rights in the Reagan Justice Department, acknowledged that “the Constitution in its original form” was marred by its compromises with slavery but averred that it was nonetheless “the greatest advance for human liberty in the entire history of mankind, then or since.” Dan Popeo, founder of the conservative Washington Legal Foundation, was so put off by Justice Marshall’s remarks as to declare him “unfit to serve” (as quoted in footnote 87 of this article). | | Somewhat surprisingly, however, John Roberts has the same understanding of the original Constitution as did Thurgood Marshall. True, Roberts holds the framers in higher esteem than Marshall did, but he too points to constitutional amendments, the Civil War, and momentous social transformations as crucial to realizing the abstract principles of the American creed. Recognizing as much has—or at least should have—jurisprudential implications. | | In his 1987 speech, Marshall inferred from the fact that the Constitution required centuries of improvement to make it worth venerating that it should be interpreted in accordance with the principles that took shape over the course of those centuries. He disavowed the view “that the meaning of the Constitution was 'fixed’ at the Philadelphia convention” because, he said, “[w]hen contemporary Americans cite 'The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.” In other words, recognition that the Constitution only became the document we understand it to be through centuries of struggle—much of which changed hearts and minds but did not alter the text—entails a rejection of originalism. | | Accordingly, in agreeing with Marshall’s core understanding (even while striking a different tone), Roberts also seems to commit himself to rejecting originalism. And yet, as Chief Justice, he presides over a Court that has increasingly equated the contemporary meaning of the Constitution with either its original meaning or a “history and tradition” test that treats even century-old laws as newfangled innovations to be disregarded in the constitutional calculus—as it did in the 2022 ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. There, the majority opinion (in which Roberts joined) held that New York’s gun control law, enacted in 1911, was inconsistent with “the Nation’s historical tradition of firearm regulation” and thus a violation of the Second Amendment. Meanwhile, the Court, again with Roberts either writing or joining the leading opinions, has gutted the First Amendment’s Establishment Clause by discarding decades-old state laws and policies limiting official endorsement of religion. These and other cases imply that “history and tradition” is either simply shorthand for original meaning or, if it allows some historical growth, that growth apparently ceased before the momentous social transformations of the second half of the twentieth century. Neither account can be squared with the understanding of how successive generations each more fully implement our national creed that Roberts expresses in his Year End Report. | | To be sure, neither Justice Marshall’s 1987 speech nor the Year End Report of Chief Justice Roberts places all of the responsibility for that fuller implementation on the judiciary. Both specifically refer to amendments to the constitutional text. Roberts also cites landmark legislation like the 1964 Civil Rights Act. But both Marshall and Roberts also specifically state that the judiciary has a role to play—and Roberts cites the Court’s overruling of Plessy v. Ferguson in Brown v. Board of Education as one example of how the judiciary has, in the past, “carried forward the Nation’s ongoing project to make the ideals set out in the Declaration real for all Americans, in the never-ending quest to fulfill the Constitution’s promise of a 'more perfect Union.’” | | Those are fine sentiments, eloquently expressed, but unless and until the Roberts Court follows through on them in actual rulings, they will remain as hollow as the Declaration’s paean to human liberty and equality were when they were first penned and signed by men who enslaved their fellow human beings. |
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