As the nation approaches the 250th anniversary of the Declaration of Independence, the Chief Justice of the United States reflects on America’s founding principles in his annual Year-End Report on the Federal Judiciary. But what does that report really say about the state of the Supreme Court today?

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione unpack Chief Justice Roberts’s historical reflections, his views on the Declaration of Independence, and what judicial independence truly means in modern constitutional law. They explore whether the Declaration is merely “ancillary” or something closer to law itself—and why that debate matters.

The discussion also turns to a persistent frustration: the Supreme Court’s shrinking docket. With filings down and opinions limited, Mark and John ask whether the Court is failing to address critical legal questions that affect Americans’ daily lives—and what consequences follow when major precedents are left to “fester” in the lower courts.

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you're a business owner, a professional, or just a average citizen, you are unknowingly gonna fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the governed.

John Vecchione: Welcome to Unwritten Law. This is John Vecchione. I am here with Mark Chenoweth…

Mark Chenoweth: Happy New Year, John.

John Vecchione: Happy New Year, and as the new year, as the clock ticks up on December 31st, the Chief Justice provides his year-end report on the federal Judiciary. And Chief Justice Roberts has once again provided his report, and the most interesting part, I think, is the preamble; this being the 250th anniversary of the Declaration of Independence and independence of the United States, he talks a lot about the creation of the Declaration of Independence. The first thing he really talks about is Tom Paine’s Common Sense and how in a population of three million it sold 400,000 copies.

Mark Chenoweth: Pretty unbelievable.

John Vecchione: Really incredible.

Mark Chenoweth: And he was a brand-new immigrant at that time too.

John Vecchione: Right…

Mark Chenoweth: Although from England…

John Vecchione: And he did it from Ben Franklin’s print shop. So, I know that nowadays on Twitter, they’d all say that Frankin was a grifter and he really wasn't for the independence but he was making so much money off of it. In any event, so but Common Sense comes out…

Mark Chenoweth: I think he would have hung separately had the cause failed. So –

John Vecchione: Exactly.

Mark Chenoweth: – I’m okay with Franklin.

John Vecchione: Me too. That's why I’d never buy this stuff. But Paine, he’d come from England, and he’d had a lot of different jobs, as the Chief Justice points out, none of which he’d really excelled at. But this Common Sense really, really took off, and Geroge Washington, the Chief notes, said that “It’s changed men’s minds.” And then, it sort of propelled the writing of the Declaration of Independence by the Second Continental Congress…

Mark Chenoweth: I didn't realize that connection before I read this, that those two things were linked.

John Vecchione: They were very close in time. I’ll translate into modern lingo to the extent I can use modern lingo in that, I believe that it created, okay –

Mark Chenoweth: Oh, wow. Okay.

John Vecchione: – a vibe…

Mark Chenoweth: I thought you were gonna say “galvanized.”

John Vecchione:

Mark Chenoweth: But I guess that was modern terminology 100 years ago.

[Crosstalk]

John Vecchione: No. No, no, no. Exactly. But I think it created a vibe that the time was now. Right? So, in any event, the Chief Justice goes into it, and he talks about Jefferson writing it and how the first sentence is the perfect sentence…

Mark Chenoweth: In all of human history.

John Vecchione: And he has a footnote for it, so I thought that was pretty good. But so, it’s an interesting report on that. But I think the commentator, Amy Howe over at SCOTUS blog, noted that he just touches briefly on judicial independence because he cites the Declaration of Independence, one of the crimes of George III was making all judges dependent on himself.

Mark Chenoweth: “On his will alone for the tenure of their offices in the amount and payment of their salaries.”

John Vecchione: And so, the Justice says, “And the Constitution then fixed it.” But I will say this, he pointed out something. And I think he’s too strong. I think he states it too strongly that the Declaration isn’t part of the law. He says it’s “ancillary.” And he does note something that I always note on this which is it’s the first thing in the statutory accumulation of the United States. The first thing is the Declaration of Indepenence. Then, it’s the Articles of Confederation, which it notes, are overruled by the Constitution, right? But the Declaration isn’t. And he goes through his view that the Declaration isn’t law, which is probably true.

But I really think that within the Originalist movement there is dispute about this: is it, in some sense, law? Because it’s referred to and cited. It’s authority certainly. So, I thought he was a little too strong, and I thought he was putting this thumb on the scales of what I think is still a very lively debate on what it is because it’s not clear exactly what it is. It’s not a pure statute because it doesn’t tell you at any do thing…

Mark Chenoweth: And it didn't go through bicameralism and presentment.

John Vecchione: Which wasn’t required then.

Mark Chenoweth: Well, that's true. That's true. That's true. And the Northwest Ordinance is still –

John Vecchione: Right.

Mark Chenoweth: – law.

John Vecchione: Is still law, right?

Mark Chenoweth: Even though that's pre-constitutional.

John Vecchione: Correct. Correct.

Mark Chenoweth: Oh, that's interesting.

John Vecchione: So, what it is is there's a lot of give and take, and I think the Chief Justice puts his thumb on the scale here a little bit. But I’d like to see more. I’d like to the federal side debate this a little more in the 250th year.

Mark Chenoweth: That'd be an interesting debate to have. Maybe one of those Rosencrantz debates or something.

John Vecchione: No question.

Mark Chenoweth: Something like that.

John Vecchione: Something like “What is it? Is it law or is it nothing or is it just in the path?” It would be very interesting because I’m sure the anti Declaration of Independence guy would have fun.

Mark Chenoweth: Oh, yeah. Oh, for sure, right? I think you’d have people lining up to do that. But the other thing that he does here is quote former Chief Justice Rehnquist, of course, for whom Chief Justice Roberts clerked before he became the Chief Justice. Rehnquist was an Associate Justice at the time that Roberts clerked for him. But Chief Justice Rehnquist had written a book called Grand Inquests, talking about some of these past impeachment hearings. I think that was on the heels of having served as the justice for the Clinton impeachment, right?

John Vecchione: Yeah, I don’t know if it was right before or right after. I couldn’t recall.

John Vecchione: A straight party-line vote would have gotten rid of him.

Mark Chenoweth: Absolutely, but they didn't because many Senators concluded that disapproval of a judges’ decisions provided an “invalid basis” for his removal from office. And then, he quotes Rehnquist as saying that that outcome “assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them.” There was a lot said in this preamble. I thought that was probably the most direct message that the Chief Justice was trying to send.

John Vecchione: Well, particularly because I think there's a good argument that Samuel Chase was a rogue judge.

Mark Chenoweth: Right.

John Vecchione: Talk about putting your thumb on the scales. He was a very good judge in many ways, but when his blood was up he would do things because he wanted the outcome, it strikes me…

Mark Chenoweth: Did he approve search warrants of the phones of senators…? Oh, wait. The phone hadn’t been invented yet…

John Vecchione: Exactly. So, in any event, he does strike me as a difficult character in a lot of ways. And so, it is important and he does take that shot. I’ll tell you another way I think that he put his thumb on the scale of the Declaration not being law. He cites Calvin Coolidge, right? And he cites Calvin Coolidge talking about –

John Vecchione: – the Declaration and the Constitution are still preserving our liberties. But he does not cite Calvin Coolidge’s, I think, most famous quote that…

Mark Chenoweth: “The business of America is business?”

John Vecchione: No. That's probably true. I thought that Hardeman. Maybe it’s him. But the point is, he says of the Declaration that, if all men are created equal, that is final. If they are endowed with their Creator with certain rights, among them are blah, blah, blah, blah, blah, blah, that’s final. In other words, he did it as a attack on the progressives that all these things change. He’s saying, “Look, if this is true… But to say that, you have to say that the Declaration’s law because it would be final for the 250 years.” He didn't cite that because, I think, it is a strong precedent for the Declaration being in some sense law.

Mark Chenoweth: That's a great point. And I’m not familiar with that Coolidge quote, but –

John Vecchione: Oh...

Mark Chenoweth: – I’m gonna have to go find that now because that’s pretty good.

[Crosstalk]

John Vecchione: You’ll have to. It’s very good. He gave it at a Fourth of July speech…

John Vecchione: Oh, yeah.

Mark Chenoweth: – other words, 100 years ago from our upcoming celebration. And he said that “Amid all the clashes of conflicting interests, amid all the welfare of partisan politics, every American can turn for solace and consolation to the Declaration of Independence and the Constitution of the United States with the assurance and confidence that those two great charters of freedom and justice remain firm and unshaken.” And then, the Chief Justice says, “True then, true now.”

Mark Chenoweth: His hair is not on fire?

John Vecchione: Yes, his hair is not on fire. And I did think he made his points, but it doesn’t have a big “breaking news” in front of it. It is not an online document. But there's one other thing I wanted to talk about unless you wanted to talk about preamble?

[Crosstalk]

Mark Chenoweth: Yeah. No, no, no.

John Vecchione: The most shocking thing, after he does his little state of the Judiciary every year, he then has all the statistics, how many cases were filed, what's happening in the district courts, how is bankruptcy going, all that kinds of things…

Mark Chenoweth: Workload.

John Vecchione: A lot of things for scholars to go through but maybe not for us to discuss too much. But the one little nugget there that I think is worth telling y’all about is he says that the filings in the Supreme Court dropped 9% from last year.

Mark Chenoweth: In one year.

John Vecchione: In one year, 9%. And they don’t take too many cases, and we complain about it all the time but to actually have the filings there drop 9% is amazing. And Mark, I think you had a speculation as to why that is? And I think I agree with it.

Mark Chenoweth: Well, yeah, just before we went on air I was saying I think it might be because a lot of folks who lose at the Court of Appeals think it’s a foregone conclusion what would happen if they appeal it to the U.S. Supreme Court and so they don’t bother, and in some cases may not want to make bad precedent on a nationwide basis. They’ve already lost at the Court of Appeals, so why would they wanna make matters worse by getting the Supreme Court to agree with that decision.

John Vecchione: Exactly, and it all goes back to litigators, particularly Supreme Court litigators, will look at the makeup of the Court and look at what they’ve said before and sometimes not decide to bring cases. There was a lot of that on the Conservative side in the ‘70s; they didn't wanna make the law worse, or in the ‘60s particularly. And then, on criminal law they said, “Oh, we can give this a shot” because it was in flux, and so the type of cases you bring changes as well. So, I do think that was interesting that it dropped 9% considering when you opened up the paper it looks like a new case is brought against the administration every day. But it is not apparently spreading throughout the country on bringing all these cases. It’s obviously a niche practice.

John Vecchione: And I’m struck by this. In forma pauperis is often a lot of immigration cases. I’m shocked that they are not up rather than down. But there's other kinds as well. It’s a broad brush but it did surprise me all the way around.

Mark Chenoweth: It’s something to keep any eye on anyway.

John Vecchione: So, any other commentary on this that we should tell our people about? I think it’s an interesting read. It’s not boring.

John Vecchione: Yes.

Mark Chenoweth: That number jumps out at me.

John Vecchione: You are correct.

Mark Chenoweth: Fifty-six opinions is not enough. Across nine Justices that's barely six opinions. It’s slightly more, right?

John Vecchione: That including emergency docket?

Mark Chenoweth: Well, I don’t know if it does, but it doesn’t distinguish –

John Vecchione: Right.

Mark Chenoweth: – there. And this would have been the term ending at the end of June, so I think some of those emergency things happened after that, right?

John Vecchione: True.

Mark Chenoweth: But I just think it’s criminal to only have 56 cases. There are way too many issues that demand the Supreme Court’s attention that are very important issues that they ought to be able to get votes for. And I know they used to say, “It’s a closely divided court and so they don’t wanna take these cases because they don't know how they're gonna come out and yadda, yadda, yadda.” Well, guess what? You’ve got six Conservative Justices now. Now is the time to hear some of these cases and correct some of these remaining problems from the Warren Court era while you can. And I just don’t understand why you would have 56 opinions.

There ought to be 76, 86, 96 opinions. I don’t see why they can’t write 10 opinions a piece. That’s one opinion a month per Justice. That's not a demanding case load. They ought to be able to handle that.

John Vecchione: Every year we complain about this. I don’t know if it’s criminal, but it falls below the standard of care, for sure….

Mark Chenoweth: Well, and certainly below what the Court of Appeals judges do.

John Vecchione: Right.

Mark Chenoweth: They're issuing dozens more decisions than that.

John Vecchione: Exactly. And so, I do think that he never addresses why they take so few cases, but it is a huge frustration in the Supreme Court Bar I think. And I know it’s a frustration for us because also there's a lot of uncertainty that hurt people in their real lives.

Mark Chenoweth: That's right.

Mark Chenoweth: Fester.

John Vecchione: – fester. There's still precedent. These judges still have to say, “Well, they seem to be precedent and I’m bound by them, but these are things undermine them.” I think some cases, I can’t think one off the top of my head, but sometimes they suffer the indignity of like a nine-zero reversal saying, “You should have known.” And that's the worst, when they do finally come to it and they say “The lower court should know, leading our precedents.” Come on. You’d also chastise them if they struck something down that you wanted upheld because of some precedent. So, it is. It’s a big problem and I hope they address it soon, and I have no hope that they will.

Mark Chenoweth: Happy New Year.

Mark Chenoweth: As we like to say here at NCLA, let judges judge. Let legislators legislate and stop bureaucrats from doing either.

[End of Audio]

Duration: 18 minutes