WASHINGTON — At the end of a grueling year on the Supreme Court, Chief Justice John G. Roberts Jr. dedicated his annual report on the state of the federal judiciary to threats to the physical safety of judges.
“The law requires every judge to take an oath to do his or her work without fear or favor, but we must support the judges by ensuring their safety,” he wrote. “A justice system cannot and should not live in fear.”
Some observers had hoped that the chief justice would use his year-end report to update the investigation announced in May into the leak of a draft opinion abolishing the constitutional right to abortion. Others had wished he would announce revisions to the rules of judicial ethics in the wake of revelations about the efforts of Virginia Thomas, wife of Justice Clarence Thomas, to overturn the results of the 2020 election.
Instead, as is his habit, Chief Justice Roberts focused on a historical episode, this one from Arkansas to Brown v. Board of Education, and drew lessons from it. “The events of Little Rock teach us the importance of ruling by the law rather than the mob,” he wrote.
Chief Justice Roberts recounted the bravery of a judge in 1957, three years after a unanimous Brown Supreme Court ruled that segregated public schools violated the Constitution.
“Not all were convinced,” wrote the chief justice. Officials opposed to Brown’s ruling included Governor Orval Faubus of Arkansas, who ordered the state’s National Guard to bar black schoolchildren from entering Central High School in Little Rock.
Attorneys for the students, including Thurgood Marshall, who had tried the Brown case and would join the Supreme Court in 1967, went to federal court and appeared before Judge Ronald N. Davies, who usually sat and visited in Fargo, ND, to fill for a sick judge.
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“Judge Davies had no idea what cases he would be drawing upon his arrival,” Chief Justice Roberts wrote. “But when it came time to decide the school desegregation lawsuit, Davies didn’t flinch.”
The Chief Justice quoted from Justice Davies’ decision in favor of the students: “I have a constitutional duty and duty which I will not shrink from. In an organized society there can be nothing but ultimate confusion and chaos when court judgments are on display.”
Timothy Davies, the judge’s son, told the New York Times his father did not find the case difficult.
“He always said those decisions could be made by anyone who could read or write,” said Timothy Davies. “The law was clear and there was nothing to decide.”
Judge Davies’ decision was not the end of the matter. To enforce it in the face of an angry mob, President Dwight D. Eisenhower called the 101st Airborne to protect black students’ right to attend school.
It is a triumph for the rule of law, Chief Justice Roberts wrote, and a reminder that judges cannot take their physical safety for granted.
“Judicial opinions speak for themselves, and there is no obligation in our free country to assent to them,” the chief justice wrote. “Indeed, we often judge – sometimes strongly – from the opinions of our colleagues, and we explain why in public writings about the cases before us. But Judge Davies was physically threatened for following the law.”
The chief justice made no explicit connection to the aftermath of the Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
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In an October remark, Judge Samuel A. Alito Jr., the drafter of the Dobbs majority opinion, said the release of a draft opinion in May was a dangerous violation that put the judges at risk.
“It was a serious breach of trust by someone,” he said. “It was a shock because nothing like this had ever happened in the past. It certainly changed the atmosphere of the court for the remainder of the last term.”
“The leak also has those of us who were thought to be in the majority to make sure Roe and Casey’s assassination targets are overridden because it gave people a reasonable reason to believe they could prevent this by killing one of us,” Judge Alito said.
He said the idea was unimaginative and noted an attempt on Judge Brett M. Kavanaugh’s life. A California man armed with a pistol, knife and other weapons was arrested near Judge Kavanaugh’s Maryland home in June and charged with attempted murder. Among other things, the man said he was upset by the leaked draft, which suggested the Supreme Court would overthrow Roe, police said.
Chief Justice Roberts wrote that he welcomed the recently enacted legislation protecting judges and their families.
“I want to thank the members of Congress who address the needs of justice security – these programs and their funding are essential to the operation of a court system,” he wrote.
The new law, the Daniel Anderl Judicial Security and Privacy Act, was named after the son of Federal District Court Judge Esther Salas in New Jersey. He was killed in 2020 when he opened the door to his mother’s house in what was meant to be an attack on her.
