Below is my column in The Hill on the continuing promotionals for “The Notorious RBG.” I have long been a critic of this trend toward celebrity justices and the discomfort over these campaigns is not simply about Ruth Bader Ginsburg. The culture of the Court is changing and I do not believe it is changing for the better.
Here is the column:
Whether it is the commercials for the film “RBG” over the last year or the nonstop CNN ads for the network premiere of the documentary Monday night, the airways are full of all things Ruth Bader Ginsburg. She was recently shown to be the best known of the Supreme Court justices and, at this rate, she could end up bigger than The Supremes. She even has her own action figure. To someone like me, who has long praised Ginsburg and considers her to be one of the strongest intellects on the bench in the last century, the saturation coverage might seem welcome. After all, why not pay homage to a jurist instead of a reality television star?
The answer is we should not and, before you burn me in effigy for such sacrilege, allow me to explain. For years, I have criticized what I call “the rise of the celebrity justice.” Justices once avoided public speeches beyond the most mundane graduation or dedication events. Justices believed they should speak through their judicial opinions and avoid even the appearance of seeking popular or political following. This tradition developed after early years of partisan figures on the courts.
With some exceptions, this tradition was largely observed by Supreme Court justices, who often barred recordings or quotes from their speeches. Recent justices like John Paul Stevens and Anthony Kennedy followed this tradition. Kennedy would not allow me even to quote a joke he told years ago at an event, out of this same unease over public comments. It results in an almost monastic life, but some of us feel it is the price of being one of nine on the most powerful court in the world.
That all changed dramatically in the last few decades. As the politics over the role and members of the Supreme Court grew after the 1950s, justices became more visible and iconic. While relatively restrained by modern measurements, William Douglas became a rallying figure for liberals and environmentalists. He even took the controversial step of leading an advocacy movement to preserve the Chesapeake and Ohio Canal that runs along the Potomac River from Washington to Maryland.
The biggest changes, however, occurred with the public personas of the late Antonin Scalia and Ruth Bader Ginsburg. Both seemed eager to embrace celebrity status with an unprecedented vigor. They routinely appeared before huge audiences and never disappointed in throwing red meat to their respective fan bases. Scalia and Ginsburg repeatedly were criticized for discussing issues coming before the Supreme Court or making highly political statements before ideological groups. Both developed loyal, if not adoring, constituencies on the far right and far left.
While Ginsburg has apologized for her “ill advised” public comments, she has continued to make them. In 2016, she ignited a firestorm over public comments in which she joked that she would move to New Zealand if Donald Trump was elected as president. She even spoke publicly on the NFL national anthem controversy, a matter that not only could come before the Supreme Court but raises the same underlying free speech issues as a number of cases working their way through the legal system. Ginsburg denounced players like former San Francisco 49ers quarterback Colin Kaepernick for their “dumb” and “disrespectful” and “ridiculous” protest while discussing the legal status of such protests.
In 2017, Ginsburg continued her public comments lamenting Hillary Clinton’s failed 2016 presidential campaign and suggesting that Clinton lost due to sexism. She was widely criticized for such openly political statements from a sitting justice. Undeterred, this year, Ginsburg continued her criticism of the election results and the “macho atmosphere” that elected Trump. She defended Clinton as being treated unfairly and criticized in a way she believed “no man would have been criticized. I think anyone who watched that campaign unfold would answer it the same way I did. Yes, sexism played a prominent part.”
Ginsburg and Scalia were not alone in seeking public acclaim. Clarence Thomas and Samuel Alito have been criticized for occasional public appearances. It has been a growing trend, and Ginsburg has been a major force in breaking down the wall between the Supreme Court and politics. The marketing of “RBG” moves justices closer to the status of reality television stars. It follows earlier programs, like the “Late Show with Stephen Colbert” episode showing the host working out with the justice.
In “RBG,” director Betsy West portrayed Ginsburg as nothing short of a global phenomenon, declaring that the movie would show how she “changed the world.” Entertainment Weekly wrote, “Forget movie stars. The hottest celebrity at the Sundance Film Festival this weekend was Supreme Court Justice Ruth Bader Ginsburg.” That is the problem. When justices become celebrities, the separation of law and politics is eroded as justices seek to maintain their popular positions with their bases. In other words, celebrity justices can become celebrity justice.
That brings us back to the “RBG” documentary. CNN has played the commercials for it on a constant loop with the type of high production values of a political commercial and the endless repetition of an infomercial. Feminist Gloria Steinem is shown proclaiming that Ginsburg is “the closest thing to a superhero I know.” For her part, Ginsburg is featured with such rousing soundbites as, “All I ask of my brethren is that they take their feet off our necks.” It all makes for thrilling film, but it does not necessarily make for good jurisprudence. Like Scalia, Ginsburg spent years cultivating a following. The danger is that a Supreme Court personality can easily lead to a cult of personality. We saw that with Scalia, and we are seeing that with Ginsburg. Jurists are humans who can be influenced by the accompanying expectations and acclaim.
This trend is no better for journalism than it is for the law. CNN never did a program on the “hero” Scalia when he was alive, with weeks of adoring promos. Likewise, just as Ginsburg is the second woman on the Supreme Court, Thomas is the second African American. His story is one of the most inspirational in American history, of a man born in Georgia, speaking Gullah, a Creole dialect, in a shack with dirt floors and no plumbing. He grew up without his father, who left him at age two. He used his Catholic education to overcome segregation and prejudice to eventually go to Holy Cross, and then gained admission to three Ivy League law schools. But Thomas is unlikely to be declared a “hero” by CNN because the network simply does not agree with his judicial philosophy.
For my part, I continue to celebrate Ginsburg’s jurisprudence, though I believe her public comments are a violation of legal ethics and wise tradition. I celebrate her opinions, which should be the measure of her legacy. I expect that many will not seriously consider these concerns over the rise of celebrity justices. Ginsburg is now a cultural icon with her own unblinking following, a body of supporters who do not tolerate any reservations about her record. That is one benefit of being a superhero.
I guess I never particularly liked superheroes, however. They are merely caricatures of our culture without lasting significance or even meaning. A Supreme Court justice should be made of stronger stuff. The best do not need glitzy ad campaigns or public speaking tours. Certainly, Ginsburg does not need it. I only wish Ginsburg herself accepted that. From the perspective of the long tradition of reticence on the Supreme Court, the most notorious thing about Ruth Bader Ginsburg is “RBG.”