By Stephen Macaulay

In the opening to his “2024 Year End Report on the Federal Judiciary” Chief Justice John Roberts writes:

“In December 1761, a little more than one year into what would be a fifty-nine year reign, King George III decreed that from that date forward, colonial judges were to serve ‘at the pleasure of the Crown.’ This royal edict departed from the long-standing practice in England, enshrined by Parliament in the 1701 Act of Settlement, of allowing judges to retain their offices ‘during good behavior.’ The King’s order was not well received.”

Roberts goes on to point out:

“the ninth of twenty-seven grievances enumerated in the Declaration of Independence charged that George III ‘has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.’”

And here he brings it home:

“Before the American founding, no other country had found a way to ensure that the people and their government respect the law.”

Which is supplemented by this:

“At the end of the day, judges perform a critical function in our democracy. Since the beginning of the Republic, the rulings of judges have shaped the Nation’s development and checked the excesses of the other branches.”

Roberts spends much time wallowing in the past, citing people including his predecessor William Renquist and Alexander Hamilton, whose work was instrumental in the creation of the Federal judiciary.

And when he writes about the contemporary, it is to point out that the independence of judges is threatened by violence, intimidation, disinformation and “threats to defy lawfully entered judgments.”

Perhaps he is being somewhat coy. Doesn’t that reference to serving “at the pleasure of the Crown” sound suspiciously like the rhetoric we are hearing about the role of the Department of Justice in the forthcoming Trump administration?

Were Trump a younger man, would it surprise anyone if he did his damnedest to hold office for 59 years?

Isn’t there something of an analogue of “Judges dependent on his Will alone for the tenure of their offices” with Trump during his first administration repeatedly referring to the Supreme Court justices as “my judges”?

When Roberts emphasizes the word “and” in his line about ensuring “the people and their government respect the law” is he intimating that government officials — past, present and, yes, future — didn’t, aren’t or won’t respect the law?

Gallup research has found Americans’ confidence in the judicial system hit a new low in 2024, at 35%.

In another survey that specifically included Supreme Court Job Approval, 51% of Americans disapprove of the job it is doing and only 44% approve.

That is better than the 58% disapproval of September 2023. But when Gallup started tracking this metric in September 2000, the disapproval was 29% and approval 62%, a long way from where it has gotten to.

While much of this can be ascribed to the current hyper partisanship that exists in the country, isn’t a measure of it the result of the behaviors of some of the justices, whether it is those who have hung on too long or those who think that they are deserving of special benefits because their positions?

Roberts writes in his review of how the Federal judiciary came to be that Hamilton argued that because the judiciary would have “neither the sword nor the purse” — the powers of the Executive and Legislature — lifetime appointment would be the means  through which the judges could maintain impartiality.

Clearly that is no longer the case — assuming that it ever was.

Judges put on their robes one arm at a time like the rest of us would. But we would like to think that once they have those robes on they have measures of probity and honesty that transcends what the rest of us generally have.

In the next few years we are going to see how well the members of the Supreme Court perform to the standard of independence from the other branches of government that Hamilton set forth in Federalist No. 78.

What are the odds that the Court’s Gallup numbers will rise any time soon?

Not good, I think.

Macaulay is pundit-at-large for The Hustings.