The normative question of “celebrity” and the Justices

Thanks to the Wall Street Journal blog, I have now read Professor Richard L. Hasen’s innovative Social Science Research Network article entitled Essay: Celebrity Justice: Supreme Court Edition. You ought to read it too! As you may know, SSRN allows you to download such things for free.

Here is the abstract of this fascinating and generally excellent paper published on May 30, 2015:

It is not your imagination. Supreme Court Justices are in the news more than ever, whether they are selling books, testifying before Congress, addressing a Federalist Society, or American Constitution Society event, or just talking to a Muppet on Sesame Street. The number of books about the Court and particular Justices continues to grow. Websites are now devoted to tracking the Justices’ movements as they crisscross the country (and the world) speaking to various audiences. Justice Ruth Bader Ginsburg is even promoted on T-shirts as the “Notorious R.B.G.,” a riff on the name of famous rap artist Notorious B.I.G. She will soon be the topic of a biopic staring Natalie Portman.

That Supreme Court Justices have become celebrities is not news. Indeed, Justices’ public statements about same-sex marriage or Bush v. Gore often get extensive coverage, and extrajudicial comments on issues in pending cases sometimes lead to (ignored) calls for judicial recusal. However, until now no one has quantified the increase in the number of publicly reported events and interviews done by Justices overall and which Justices engage most reported extrajudicial speech.

Using an original dataset of reported instances of Supreme Court Justice extrajudicial appearances and interviews from 1960 to 2014, I find that the amount of reported extrajudicial speech has increased dramatically, especially in the past decade. From 1960-1969, research identified 196 publicly-reported appearances or interviews by all the Justices combined. This number fell by half (to 95) in the 1970s. From 2005-2014 it rose to 880, a nine-fold fold increase over the 1970s. The data show close to a doubling of the number of reported appearances from the 1970s to the 1980s and from the 1980s to 1990s, and then more than doubling of the number of reported appearances from the 1990s to the 2000s. While a small part of that discrepancy between old and new rates of appearances may be due to research limitations as to older news sources, most of the discrepancy appears due to the great increase in the number of reported public appearances by Justices, driven in part by the swelled number of media outlets looking to interview and report on the Justices.

Further, not all Justices are created equal when it comes to Celebrity Justice. John Marshall Harlan, had a mere 4 reported appearances or interviews from 1960 until he left the Court in 1971. Five Justices had over 175 reported appearances or interviews: Stephen Breyer (250), Ginsburg (206), Anthony Kennedy (179), Scalia (199), and Clarence Thomas (192). Dividing the number of appearances by the number of years a Justice was on the Court from 1960 until 2014 yields a “Celebrity Index.” In that Index, Justice Sonia Sotomayor is the highest scoring celebrity Justice, with a score of 13.8 annual reported appearances, followed by Justice Breyer, with a score of 12.5. Nine of the top ten Justices in the Index are current Supreme Court Justices. Finally, not all types of appearances are the same. Some Justices are much more likely to give interviews than others. Justice Sotomayor has given the largest percentage of interviews, and Justice Kennedy the smallest.

This Essay proceeds in three parts. Part I sets out the evidence of the rise of Celebrity Justices and the variations among Justices. Part II discusses methodological concerns. Part III briefly reflects on the normative question whether the rise of the Celebrity Justice is good or bad. I argue that the answer is mixed, but the trend of public appearances and interviews likely will continue to grow in coming years thanks to a drastically changed media landscape and a politicized Court.

While the professor addresses the normative question of whether public appearances by the Justices and the attendant “celebrity” is good or bad, he does so in the typical academic fashion. That is, he rides the fence.

I don’t want to ride the fence. Briefly, here is my take:

* The Justices are public officials in the best sense of those words and the Justices do the Court and the lay public a great service by being open, candid and frank when they appear publicly. That is particularly true when they speak to real people as opposed to appearing in controlled and functionally safe settings like giving prepared talks at law schools or to bar groups.

* The public is fascinated by the Court and the Justices. We are fortunate that is true now, and has been true for a long time.

* I would argue that Justice Sonia Sotomayor has done more good for the Court than any other Justice in the history of the Supreme Court by giving interviews, by hanging out with Muppets on “Sesame Street” or by dropping the Times Square ball on New Year’s Eve. By offering the public a chance to see her as a real person, warts and all, she provides the public valuable insights into the humanity of the Justices. I am absolutely convinced that the public’s trust in the Supreme Court is proportional to the perception that the Justices refuse to consider themselves elites above the fray.

In short, while Professor Hasen uses the term “Celebrity Justice” as a seeming sneer, I prefer the term “Open Justice.” But, then again, I am a simple-minded romantic when it comes to transparency.

RGK

19 responses

  1. Arguably you are at least a C-List judicial celebrity and certainly an A list local judicial celebrity. A good faith argument could also be made that you have earned the nickname “Notorious RGK”.

  2. Call me old-fashioned, but I think judges should maintain some distance between themselves and the public square. I’d suggest that your decision to foreswear voting since your appointment seems to be part of a similar impulse. (Having said that, I did enjoy Justice Breyer on Wait, Wait, Don’t Tell Me, and as far as I’m concerned anyone is better for appearing with the Muppets.)

    Perhaps a greater concern is that the Supreme Court’s docket has declined markedly in the past few decades. While I’m sure that the justices work hard–perhaps even harder than overworked trial-court and intermediate appellate court judges–I must wonder if some of their public-appearance time is taken away from deciding more cases, and whether that would not be salutary for the nation.

  3. My first thought was to wonder about other areas in which you would consider yourself to be a simple-minded romantic?

  4. The Celebrity Justices work so hard at their moonlighting that it is remarkable that they show up for their day jobs. By his own admission, Justice Thomas “spent far too many solitary hours facing blank pages, digging through dusty boxes full of half-forgotten files” for the writing of his autobiography. Federal appellate judges only do the work they want to do—not what we pay them to do.

    Even with the assistance of armies of law clerks, they write eight opinions per judge per year. Judge Posner’s output (80) matches that of the Court in toto. And there is no conceivable reason for them to write such tiresome tomes, as appellate courts routinely ignore “precedent” because, in the infamous words of Judge Reinhardt: “They can’t catch ‘em all.” And to be honest, neither do the Circuits. As Orin Kerr explains:

    When a Ninth Circuit panel is scheduled to hear a case, one chambers is assigned the task of writing a single bench memo that is shared with the other two judges and their clerks. It’s a time-saving device; a single clerk does the work, freeing up the other chambers to work on other matters. While the other judges on the panel are free to ignore the shared memo, or to require their clerks to write separate memos, in many cases that one bench memo sets the tone for what the panel is likely to do with the case.

    My pet theory is that the Ninth Circuit’s bench memo practice explains some of its quirky opinions. When only one chambers takes a ground-up view of a particular case, the other two chambers are less likely to notice when the bench memo is missing something important. In a run-of-the-mill case, the common memo lets other chambers be a bit less careful about researching the case. Being a bit less careful, they are less well equipped to point out a flaw in the memo’s reasoning or possible inconsistency with other cases. If nothing in the memo jumps out as clearly incorrect and the judges do not disagree sharply on the outcome of the case, no one on the panel will notice if the bench memo is a bit off.

    http://volokh.com/2011/10/24/re-post-bench-memos-and-the-ninth-circuit/

    And yet, people wonder why our system is so f’ing broken? Judges literally do not have a clue as to the real and subtle issues that should control the cases they are deciding. No one is performing quality control, which is ultimately the job of our Celebrity “Justices.” Too busy giving speeches in Santiago (Scalia, in March) and sharing banter with their intellectual equals (the Muppets).

  5. Jon,

    Fair question, that last one. But, since I want the Supreme Court to take fewer cases, I am not worried that their public appearances conflict with their work.

    All the best.

    RGK

  6. I sorta like the chutzpah it takes to call out the Justice as bunch of flashers when one’s claim to fame is peeking underneath the robes and reporting what you see.

  7. Your Honor,

    you actually want SCOTUS to decide LESS cases??? I don’t see how that works, constitutionally speaking. As Chief Justice Marshall once said, the grant of the judicial power implies A DUTY to exercise it. In effect, not exercising the power IS exercising that power in a way that negates the rule of law.

    When did Marbury v. Madison get overturned?

    How does that work? As Congress can’t pass a law in conflict with the Constitution, and judges can’t adopt policies that are, I don’t see how that is even legally permissible.

  8. All I want from the Justices is constitutionally coherent opinions, as opposed to politically-charged manifestos. All I want from other judges is decisions following the precedent of their Circuits.

    Why is that too much to ask?

  9. I can see it now: “La Cage aux Juge,” screenplay by Harvey Fierstein, produced by Kanye Kardas…er, West and Tom Cruise, with words and music by Cole Porter. Nothing but Wheaties, Armand de Brignac and Courvoisier at the concession. And the dancing [Al]itos perform “YMCA” at random places in the movie, for no apparent reason. Daniel Radcliffe can play you as a young man, but he must effect a Scottish accent. Just because. Oh, and just to really make it Mel-Brooks-on-an-acid-trip, random Kardashians and Wahlbergs rotate in and out, playing the same two characters (I’m thinking Ruth B-G and Scalia) in tight leather chaps and Madonna-esque cone bustiers. Man, this baby is gonna sweep the Oscars!

  10. The black robes are fine but there should be a place for medals on the sleeve, sash or headdress.

  11. Yes, we need more openness, more light and less heat. And as an aside, it is time for the robes to go the way of wigs. Religious overtones.

  12. P.S. I am not the earlier posting Anonymous. I am an anonymous Anonymous. For no other reason than I am careless. Sometimes when I post, my name appears and sometimes it doesn’t . No matter. The name has no weight anyway.

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