Chief Justice John Roberts released an impassioned Year End Report on December 31, 2019, which generated much commentary. The New York Times, for instance wrote about the Chief Justice’s calls for an independent federal judiciary. The Wall Street Journal examined Justice Roberts’ warnings against rumor and false information. These values inherent in the Chief’s report foreshadow important aspects related to the (presumably) upcoming Senate impeachment hearings which Roberts will preside over. While these allusions clearly relate to current politics, Roberts did not stray drastically from the substance in his previous Year End Reports, nor from topics he discusses in some of his most well known decisions. This post looks at some of the key words Roberts uses in Year End Reports.* It also looks at some of the top words in his opinions released in the month of June which tends to be the month the Court releases its most important opinions. Roberts often steeps his prose in the Court’s history and is not adverse to discussing the relationship between politics and the Court. We can see these facets of his writing in his word choice in both sets of texts.
One of the more profound statements in Chief Justice Roberts’ 2019 Year End Report came in second to last paragraph where he wrote:
“We should celebrate our strong and independent judiciary, a key source of national unity and stability. But we should also remember that justice is not inevitable. We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch. As the New Year begins, and we turn to the tasks before us, we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”
This notion of trust in the judiciary is central to Roberts’ philosophy of the Court. It is so crucial that Roberts gave one of his very few public comments defending the federal judiciary after President Trump criticized the decision of an “Obama Judge” that ruled against the President’s migrant asylum policy. The trust and judicial independence that Roberts focused on in the 2019 Year End Report was the type espoused in the Federalist Papers. This is clear from many of the top terms in the Year End Report itself.
While the top terms are some of the more common words that appear across many of Roberts’ Year Reports, mainly dealing with judges and their role in civic education, we see that (John) Jay’s name came up eight times, federalist (relating to the Federalist Papers) came up six times, Madison five times, and Hamilton four times. We see these words’ importance in passages such as the following, which underscores remembering the purpose of living under a democratic government:
“Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside.”
Looking across all of Roberts’ Year End Reports since he took over the role of Chief Justice in 2005, we see that he tends to focus on essential concepts to courts and the rule of law. The top row shows the number of times these words have arisen, and the bottom row shows the number of Reports that these words appeared in (the maximum is 15).
These words include many specific to courts and judges, but also encompass much more. Some of the other words that have application beyond specific aspects of courts include “system” which was used 63 times in 13 Reports, “Congress” which was mentioned 58 times in 13 Reports, and “government” which was discussed 49 times in 12 Reports. An example of the use of system comes from Roberts’ 2005 Report where he wrote, “I also understand that it is the responsibility of Congress to do difficult things when necessary to preserve our constitutional system. Our system of justice suffers as the real salary of judges continues to decline.” In ways like this Roberts expands his discussions beyond the courts by expounding on facets of the federal government more generally.
Looking at some of the other common words in Roberts’ Year End Reports we see how some of the ideas raised in the 2019 Report were not as unique as might be assumed, while other ideas related to law and politics are also apparent.
“Branches” of government are described 22 times in 10 Reports, the Constitution appears 28 times in 11 Reports, “executive” comes up 12 times in five Reports, and the “president” is described 12 times in seven Reports. In addition, various individuals are subject of frequent discussion including past-Chief Justice Rehnquist who was mentioned 13 times in six Reports and Alexander Hamilton who came up nine times in five Reports.
When we look at the top words that appear in the 71 opinions Roberts authored that were released in June (consisting of 38 majority opinions, 25 dissents, and eight concurrences), the topics are not terribly far off from the main words raised in his Year End Reports.
“Court,” “government,” “law,” “federal,” “United States,” and “Congress,” all are top frequency words from Roberts’ Year End Reports. Some additional notions with potential political implications also arise frequently in these opinions. “Power” was mentioned 499 times across 46 opinions, “rights” came up 392 time in 42 opinions, and “political” came up 338 times in 33 opinions.
“Power” came up most frequently (134 times) in Roberts’ majority opinion in NFIB v. Sebelius examining the constitutionality of President Obama’s Affordable Healthcare Act. “Rights” are discussed the most (43 times) in Roberts’ majority opinion in Board of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Systems. Finally, the term “political” came up the most times in Roberts’ majority opinion in last term’s Rucho v. Common Cause, where Roberts opinion held that the federal courts must avoid ruling on cases dealing with partisan gerrymandering. This decision generated a powerful response from a bevy of individuals that disagreed with the decision as well as a fervent dissent from Justice Kagan due to Roberts’ decision not to enter the “political” fray.
None of these decisions, however, is Roberts’ most similar opinion in terms of word composition to Roberts 2019 Year in Report. Using a method called cosine similarity, which is described as “a metric used to measure how similar the documents are irrespective of their size,” all of Roberts’ opinions released in June were compared to his 2019 Year End Report. The top three most similar opinions based on cosine similarity are Roberts’ 2011 majority opinion in the bankruptcy case Stern v. Marshall, Roberts’ dissent in Boumediene v. Bush, and Roberts’ dissent in Sprint Communications v. APCC Services.
Where are the similarities between these opinions and Roberts’ 2019 Year End Report? Stern v. Marshall presents how an unlikely opinion mirrors concepts from Roberts’ Report. Much of the case discussion surrounds Article III permissions on Bankruptcy Court judgements. In one section Roberts goes through a historical analysis writing,
“Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges. The colonists had been subjected to judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of Great Britain “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” The Declaration of Independence ¶ 11.”
As this passage makes apparent, it is not always the predictable cases that raise the same concepts and concerns that arise in Roberts’ Year End Reports. Nonetheless, the themes the come up in Roberts’ opinions and Year End Reports often have implications that extend beyond specific cases to political ideals and to expectations for a well functioning democracy.
*When processing the text one and two word phrases were included. A stoplist dictionary removed generic words such as “and” and “the.” Words under two characters were removed.
On Twitter: @AdamSFeldman
Generating predictive legal analytics at Optimized Legal Solutions LLC
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