If there’s one determine in American historical past who wouldn’t stand for any of the current nonsense, it’d be Thomas Paine. The revolutionary pamphleteer hated the concept of monarchs trampling on folks behind the veil of absolute immunity a lot that he adopted up the American Revolution by rolling over to France and getting elected to the revolutionary authorities with out understanding the right way to converse French. Then he languished in jail as an opponent of the Robespierre administration and got here dwelling to jot down letters bashing George Washington. Thomas Paine had precisely zero tolerance for government bullshit. So, clearly, the writer of Trump v. United States invoked Paine as a political mascot to gaslight the American folks into pondering any of that is regular.
Yearly, Chief Justice John Roberts releases his Year-End Report on the Federal Judiciary, and yearly it reads like a university sophomore pulling an all-nighter to ship a 10-page essay with out doing the studying. What’s there to say concerning the state of the federal judiciary as 2025 drew to an in depth? A large uptick in violent threats against judges? A number of situations of federal government lawyers caught lying to the courts? An historic lowpoint for public faith in the Supreme Court?
Roberts will talk about none of these matters. Whereas not as far afield as his 2023 report, which devoted several pages to the advent of typewriters, the 2025 Annual Report offers an equally empty Temu historical past lesson, with Roberts hiding behind the form of phony portrait of Thomas Paine’s life and work that solely a real #Originalist might concoct.
2 hundred fifty years in the past this week, a current immigrant to Britain’s North American colonies put the ending touches on a manuscript during which he hoped to specific “plain truths” about his newly adopted dwelling.
Immigrants get the job finished, eh? Thomas Frank wrote an essay within the Baffler again within the 90s suggesting that the issue with protest artwork is that it’s aesthetic qualities will at all times finish with it getting repurposed to assist the established order. It’s why Donald Trump is celebrating dropping bombs on Venezuela to the tune of Lucky Son — a music explicitly about wealthy folks sending common of us to die in wars for their very own private enrichment. The unhappy legacy of Hamilton will virtually assuredly be its cooptation into the form of “good immigrant” mythologizing that guys like Roberts cite whereas concurrently nodding gravely on the unlucky necessity of Kavanaugh stops to spherical up everybody by pores and skin coloration. Frequent Sense was, fairly actually, a screed in opposition to a monarch who believed he might do no matter he needed. Roberts has spent the final yr rubber-stamping the worldview that King George’s solely crime was not changing William Pitt with Stephen Miller.
Professor Steve Vladeck, commenting on the Roberts report, took a way more gracious studying of the Roberts report:
In opposition to that backdrop, the 2025 year-end report is fascinating for its subtleties. Studying between the traces, one can discover the Chief Justice of the US standing up for immigrants; extolling the persevering with aspirations of the Declaration of Independence; and reiterating the significance of judicial independence—three messages which might be definitely welcome as we look forward to the second yr of the second Trump administration. The issue, although, is that one has to learn between the traces to seek out these takeaways. Given the yr that simply transpired—not simply the substantive habits of the chief department however its unprecedented hostility towards, threats in opposition to, and defiance of federal judges—this is able to’ve been a golden alternative for Chief Justice Roberts to make the type of assertion which may’ve resonated throughout the political/ideological spectrum. By choosing subtlety, it appears price asking precisely who the Chief Justice views as his viewers today. Not solely am I more and more not sure of the reply, however, much more importantly, I’m wondering if he may be, too.
It might be good if Roberts had been simply too weak and delicate to satisfy the second. However Chuck Schumer already has that job. The place Vladeck sees constructive indicators, I see the continued effort to recast American historical past to assist the modern right-wing political challenge that Roberts has labored to impose on the nation.
Paine is a prop. This report is stuffed with props. When James Clavell wasn’t writing thousand-page doorstops about feudal Japan, he put out a brief story concerning the path to fascism being paved by rituals just like the Pledge of Allegiance. Tyrants can’t simply roll in and make folks overlook what their nation is all about, however they’ll systematically repurpose symbols once they’ve grow to be deified by unquestioning lots.
Paine — a hero! — impressed the Declaration of Independence. Everybody is aware of that the Declaration of Independence is “good,” proper? However earlier than anybody tries to attract any broad conclusions concerning the Framers opposing occupying troops flooding the streets, keep in mind the Declaration, for all its “good”-ness, is merely ancillary.
This may increasingly come as a shock to some readers. However, as Justice Scalia noticed, the Declaration consists of “aspirations” and “philosophizing” that don’t lend themselves effectively to prescription or enforcement.
When rights are inconvenient, they at all times grow to be “aspirational.” However Roberts does acknowledge the Reconstruction Amendments for making an attempt to transform the Declaration’s guarantees into one thing concrete.
That work started with the Thirteenth Modification abolishing slavery. Lincoln lived to see that modification cross each the Senate and the Home, although it was not ratified till after his assassination. Because the British thinker John Stuart Mill noticed, with the adoption of the Thirteenth Modification, “the opening phrases of the Declaration of Independence” would now not be “a reproach to the nation
based by its authors.” The Fourteenth and Fifteenth Amendments quickly adopted, guaranteeing due course of and equal safety of the regulation and granting the fitting to vote to Black males.
Word how the abolition of slavery will get prime billing and the “precise promise of equality and the fitting to vote” are relegated to afterthoughts. That’s a characteristic not a bug for the man who declared racism a factor of the previous whereas gutting the Voting Rights Act.
That is one other juncture the place I hope optimists like Vladeck are proper, however suspect they don’t seem to be. Roberts isn’t sending a coded message that this Courtroom will respect the guarantees of the Reconstruction Amendments, he’s telling us that this Courtroom “respects” these constitutional rules and anybody who suggests in any other case misunderstands the road between aspiration and actuality. It’s Clavell’s Pledge of Allegiance another time: you understand we consider within the Fifteenth Modification… so once we say it means the chief department can purge state voter rolls based mostly on race it’s solely as a result of we consider in it a lot.
Roberts closes the report by assuring us that the Structure and Declaration “stay agency and unshaken,” quoting Nice Melancholy architect Calvin Coolidge. That is framed as providing solace to the general public, but it surely’s the opiate. The fastened stars of the American constellation are agency and unshaken as a result of it’s un-American to query whether or not political operatives utilizing the Courtroom to erase a century — or extra — of precedent may shake these foundations. Joyce Vance famous that the report opens with a photo of an empty room, an acceptable selection for a report casting American authorized historical past as empty signifiers to be crammed in by his majority.
Perhaps that’s not what he’s making an attempt to say. But when it’s not, he’s invited to drop the subtlety and write one thing simple and principled. Like Tom Paine would’ve.
(Report on the subsequent web page…)
Earlier: Chief Justice John Roberts Thinks You’re Stupid And He’s Probably Right
John Roberts Once Again Uses Judiciary’s Annual Report To Express His Utmost Contempt For The Public
Chief Justice’s Annual Report Recounts 65-Year-Old Tale Of Judicial Heroism To Remind You There Isn’t Any Today
Joe Patrice is a senior editor at Above the Regulation and co-host of Thinking Like A Lawyer. Be happy to email any suggestions, questions, or feedback. Observe him on Twitter or Bluesky should you’re involved in regulation, politics, and a wholesome dose of faculty sports activities information. Joe additionally serves as a Managing Director at RPN Executive Search.
