Chief Justice John Roberts began his 2021 year-end report, as he so often does, with an anecdote from history to set the stage. But by the end of the first page, the message of Roberts’ report, which he released as usual on the final day of the year, was clear. In a year when a presidential commission studied Supreme Court reform and members of Congress introduced major legislation to revamp aspects of the federal judiciary, Roberts argued that any changes to the court system should (and, he said, would) come from within.
Roberts started his 2020 year-end report by looking back over 200 years, to recount a tale involving the first chief justice, John Jay. For his 2021 report, he went back only a century, to the 10th chief justice, former President William Howard Taft. In his role as chief justice, Roberts wrote, Taft was a “visionary” who persuaded Congress to create the institution that eventually became the Judicial Conference of the United States, which makes policies for the federal courts. Taft, Roberts contended, also believed that courts “require ample institutional independence.” “The Judiciary’s power to manage its internal affairs,” Roberts stressed, “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.”
After noting that the Judicial Conference has spent significant time over the past two years dealing with the COVID-19 pandemic and cybersecurity, Roberts turned to three specific issues that, he said, “have been flagged by Congress and the press over the past year” and “will receive focused attention from the Judicial Conference and its committees in the coming months.”
The first issue that Roberts addressed involved federal ethics rules, and in particular the obligation of federal judges to recuse themselves from any case in which they have a personal financial interest. In September, an investigation published in The Wall Street Journal revealed that over a seven-year period, 131 federal judges participated in 685 cases involving companies in which either they or their family members owned stock. Federal law and conflict-of-interest rules prohibit judges from hearing such cases.
In response to the Journal’s reporting, the House of Representatives in early December passed, by a vote of 422-4, the Courthouse Ethics and Transparency Act. In a statement at the time, Gabe Roth of Fix the Court, a nonpartisan group that advocates for reforms to make the federal judiciary more accountable to the American people, said that the bill was intended to “help litigants and the general public identify conflicts” in real time. It would require federal judges (although not Supreme Court justices) to disclose stock sales and purchases greater than $1,000 within 45 days of the transaction. Judges’ financial disclosure reports would also have to be posted online and easily searchable.
In his report, Roberts sought to simultaneously acknowledge the seriousness of the ethics violations identified by the Journal and, as he wrote “put these lapses in context.” “[T]he Judiciary takes this matter seriously,” he wrote. “We expect judges to adhere to the highest standards.” But, he continued, “the 685 instances identified amount to a very small fraction — less than three hundredths of one percent — of the 2.5 million civil cases filed in the district cases in the nine years included in the study,” and there is no indication that any of the judges benefited from the violations.
Roberts conceded that the judiciary needs to improve on both a concrete level – with more rigorous ethics training and better conflicts-checking programs – and in a more abstract way, by paying “greater attention to promoting a culture of compliance.” But he left little doubt that he saw this as work for the judiciary, rather than Congress, writing that the Administrative Office of the U.S. Courts “is already working with the Judicial Conference’s committees … with jurisdiction to address these problems.”
Concerns about the judiciary’s response to allegations of sexual harassment in the workplace – the topic of Roberts’ 2018 year-end report – received similar treatment. In 2021, members of both parties introduced the Judiciary Accountability Act of 2021 to ensure (among other things) that employees of the judicial branch have the same protection against discrimination as other government employees and private-sector employees. On Aug. 25, Judge Rosalyn Mauskopf, the director of the Administrative Office of the U.S. Courts, sent a letter to the House Judiciary Committee indicating that the Judicial Conference opposes the bill.
Roberts reiterated in his 2021 report that a panel of judges and judicial administrators had concluded in 2018 that although there had been several serious high-profile incidents, “inappropriate workplace conduct is not pervasive within the Judiciary.” The Judicial Conference had adopted recommendations to “ensure that every court employee enjoys a workplace free from incivility and disrespect,” Roberts noted. So although he “appreciate[d] that Members of Congress have expressed ongoing concerns on this important matter,” he assured them (as well as the public) that “the Judicial Conference and its committees remain fully engaged.”
Roberts concluded with what he described as an “arcane but important matter of judicial administration” – the procedures to assign patent cases in federal trial courts. In a Nov. 2 letter to Roberts, Sens. Patrick Leahy, D-Vt., and Thom Tillis, R-N.C., noted that a single judge in the Western District of Texas accounts for approximately 25% of all of the patent litigation currently pending in the country. The senators asked Roberts to “direct the Judicial Conference to conduct a study of actual and potential abuses that the present situation has enabled,” and to “complete this report by no later than May 1, 2022.”
Roberts observed that “[t]wo important and sometimes competing values are at issue” – the random assignment of cases and the idea of district judges as generalists, and Congress’ intentional creation of districts and divisions “so that litigants are served by federal judges tied to their communities.” “This issue of judicial administration,” Roberts concluded, “provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve — and to work in partnership with Congress in the event change in the law is necessary.”
This post is also published on SCOTUSblog.