The Notorious RBG and the Problem With The Celebrity Justice

download-2Below 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.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

238 thoughts on “The Notorious RBG and the Problem With The Celebrity Justice”

  1. Turley wrote, “When justices become celebrities, the separation of law and politics is eroded as justices seek to maintain their popular positions with their bases.”

    I get the notion that Supreme Court Justices ought not to be bowed by popular sentiment. And that bowing to a popular audience creates the appearance of being bowed by the same. But I really have to wonder exactly what Turley thinks politics is, when he calls for the separation of law from politics. How is that even possible in the first place? I’ve heard similar complaints about the need to separate war from politics. And so I ask again, exactly what do such plaintiffs think politics is? Campaigning for elected office? That’s the whole of politics? Neither law nor war, nor diplomacy, nor any other forms of statesmanship are ever instances of politics? Were that the case, then there would never have been any politics nor any politicians, nor any political philosophers, nor any political scientists before democracy got itself fitfully reborn in the early modern era.

    Also, nobody is calling for the popular election of Supreme Court Justices. Nobody.

      1. Thank you, Dr. Benson. But I had long ago assumed that you knew what politics is, was and ever will be. I no longer assume very much of anything about Turley’s knowledge.

        Also, the pejoration of politics is one of my pet peeves. The worst is when one politician points his or her finger at another politician and accuses the latter of playing politics with the issues, or being politically motivated, or politically biased, or just plain being a politician.

          1. David Benson owes me nine citations (one from the OED) and the source of a quotation, after fifteen weeks, and needs to cite all his work from now on. – you should have had her define it since most words have more than one definition. You don’t know which she means for sure.

            1. What a fool. The Google search instantly located the single definition which I quoted the beginning of.

              Back to your road, yellow brick.

              1. David Benson owes me nine citations (one from the OED) and the source of a quotation, after fifteen weeks, and needs to cite all his work from now on. – you’re a fool to trust Google, switch over to Duck Duck Go.

            2. Dr. Benson’s definition will suffice. But since you’re carelessly asking again . . .

              Politics is the struggle for control over the authority to make decisions respecting the distribution of wealth accumulated from the exploitation of land, water, plants, animal, minerals and other commodities, as well as the human labor and technology necessary to exploit those natural resources, for the redemption of a human society, known as a polity, the members of which are engaged in said struggle for control.

              1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – here is a more pragmatic definition.

                Politics

                n. A strife of interests masquerading as a contest of principles. The conduct of public affairs for private advantage.

                1. That’s not all that different than what I wrote. It is pithier, though. If you got that from Dr. Johnson, then you owe Dr. Benson a citation.

                  1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – until I get my citations from Benson, I don’t owe him diddle.

                    1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – you are not very well read are you? Any well-read person will recognize the style.

                    2. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – Ambrose is always there when you need him. 😉

            3. Certain zoologists, who have given themselves the name of ethologists, are wont to claim that humans are not the only political animals. Those zoologists ought more properly refer to themselves as anthropomorphicists. For humans are, in fact, the only anthropomorphic animals. And the zoologists are ones, too.

  2. I just asked 4 freshmen here if they had ever heard of Ruth Bader Ginsburg. None had.

    I then asked them if they could name a single justice of the Supreme Court. None could. Another student in an adjacent booth put 2+2 together to ask if Ruth Bader Ginsburg was still on the Supreme Court. I assured here that she was.

    Additional questions determined that that they didn’t know that the Constitution had articles, much less than what those were. Did know that there were 10 amendments. I didn’t attempt to correct them. When asked to name a famous Supreme Court decision, none could. Had they learned about the Dred Scott decision in their American History course in high school? All 4 shook their head.

    Now Washington state has quite a decent public school system and WSU students come from the upper ranks of their graduating classes. So somehow I think RBG is performing a useful role in adult education and now desire for the other justices to join her.

      1. David Benson owes me nine citations (one from the OED) and the source of a quotation, after fifteen weeks, and needs to cite all his work from now on. – the students probably knew where the student health center was, but like you cannot find the library.

          1. David Benson owes me nine citations (one from the OED) and the source of a quotation, after fifteen weeks, and needs to cite all his work from now on. – You are really losing it. That doesn’t even make sense. However, are you trolling students who live with you or are you going on campus or just asking liking prospects as they walk by the house. And statistically four is a low sample number, just saying.

            1. I have dinner, often, in a student dining room. So far I have asked a total of 11 students. Some might even be in the Honors College.

              I suspect that I have a representative sample of the best.

              And you forget what I previously cited, brick.

            2. Dr. Benson said, “Paul C Schulte remains as forgetful as a yellow brick. Back to your road!”

              Paul C Schulte said, “You are really losing it. That doesn’t even make sense.”

              Did you know that the author of The Wizard of OZ, L. Frank Baum, was a Theosophist? Supposedly, the yellow brick road symbolizes The Golden Path through the afterlife. There’s also supposedly something going on with the trees that throw apples at Dorothy and the whole “over the rainbow” bit. Exactly what that has to do with being as forgetful as a yellow brick remains anyone’s guess. We’re off to see the Wizard.

    1. I just asked 4 freshmen here if they had ever heard of Ruth Bader Ginsburg.

      Does your residence really need 4 nurse’s aides to change your Depends?

    2. “I just asked 4 freshmen…”

      “Now Washington state has quite a decent public school system and WSU students come from the upper ranks of their graduating classes.”

      – David B. Benson
      _______________________________________________________________________________________________________

      So, Benson, you are a parasitic public worker living off of the public dole? Who’d a thunk? Help me out here.

      Can you pay taxes with taxes? Is it possible for workers paid with collected tax dollars to pay taxes with the tax dollars they just received? Can one pay taxes with taxes? So you don’t actually pay taxes, right?

      Should a public worker who is paid by elected officials be allowed to vote for those elected officials?

      Now you understand why the American Founders gave Americans a “…republic, if you can keep it,” Ben Franklin.

      A republic is not one man, one vote democracy; it is representative governance “…in which supreme power resides in a body of citizens entitled to vote.”

      The American Founders intended for criteria to be met by voters.

      I doubt being on the public dole is a criterion.
      ___________________________________________________

      Merriam Webster

      Republic

      b (1) : a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law

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