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.


After they rule against you, leave jurors alone

I hate the idea of a lawyer being able to attack a juror after an adverse jury verdict even when the lawyer thinks a juror lied during jury selection. The Supreme Court does too.

For the unanimous opinion of the Court, written by Justice Sonia Sotomayor, see Warger v. Shauers (Federal Rule of Evidence 606(b) precludes a party seeking a new trial from using one juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire).

Justice S. shows her sensitivity to Justice Scalia’s hatred of legislative history, and her sense of humor as well. She wrote: “For those who consider legislative history relevant, here it confirms that this choice of language was no accident.” Slip. op. at 7. I celebrate unanimous opinions, particularly when (1) they are clearly right and (2) deal with the federal rules. Justice Sotomayor knows how to obtain unanimity, and that’s good for those of us who toil in the corn fields.


As always, thanks to Howard Bashman and How Appealing.

On the utility of making Supreme Court Justices uncomfortable

The extraordinarily talented Tony Mauro has a piece well worth reading entitled, Sotomayor Sees Return to Trial Courts After Retirement, Supreme Court Brief (November 17, 2014) (h/t How Appealing).  In the article, Mr. Mauro quotes the fascinating Justice Sonia Sotomayor:

“Out of my mouth came, ‘When and if I retire, I’m going to go back to the district court,” Sotomayor said, recalling her six years in the 1990s as a judge on the U.S. District Court for the Southern District of New York. “Why would I want to go do what I’ve been doing for however many years it’s been on the appellate court and the Supreme Court?”

She continued, “I want to go back to my first love. And the district court is a very different and exciting place. At least for me, it was the formative experience for preparing me for the [Supreme] court.” (Her remarks are at the 1:13 mark of the conversation, available on YouTube.)

Good for the Justice. I hope she means it.

But, let’s go the Justice one better. Instead of going off to Salzburg or wherever over the summers to teach (and engage in all manner of other pleasant things), why don’t the Justices resolve to try cases to juries in the United States District Courts. And I mean every Justice, even the ones who think they are too smart to set forth in a trial courtroom.

Go to the sticks or some place where the Justice doesn’t know the local legal culture and take a case to a jury trial–a place and a case that would make the esteemed feel uncomfortable and require him or her to rub shoulders with real trial lawyers. Try a criminal case with several defendants involving a drug conspiracy and a bunch of statements raising Federal Rule of Evidence 801(d)(2)(E) problems, or a patent case involving a magic new manure spreader and requiring jury instructions that don’t read like Supreme Court opinions, or a contract case for the production of complex software where no one has yet to figure out what the judge is supposed to do during trial regarding the terms of the contract as contrasted with what the jury is supposed to do with those same terms during deliberations. Draft a verdict form, prepare jury instructions, make rulings on evidence, do a jury orientation, hold bench conferences, decide whether you want a court reporter or digital audio, determine whether to allow recross, decide if lawyers may move freely about the courtroom without your permission, conduct a voir dire and rule on whether the lawyers get to ask questions too, and so forth. Oh, and over the noon hour, conduct two or three sentencing hearings in criminal cases.

Such a practice–trying real cases to real juries with real lawyers in real places–would expand exponentially the horizons of all the Justice (even Sotomayor who spent only six years as trial judge–a mere blink of time for most of us). It would also give the hard-working and long-suffering judges of the Courts of Appeal an opportunity to reverse a Supreme Court Justice for making perfectly idiotic rookie mistakes–and that would be very good for the souls of the rest of us and the Justices too.




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