Half a Cheer for Justice Ginsburg’s Celebrity Turn

Justice Ginsburg’s frequent and increasingly candid off-the-bench statements have elicited praise and condemnation from predictable sources. Fueled by social media, she has achieved an almost cultish celebrity status, her every remark cherished by her admirers, her face featured on “Notorious RBG” t-shirts. Although Justice Scalia has an army of faithful followers and Justice Sotomayor has been met with adoring crowds while promoting her autobiography, Justice Ginsburg’s recent turn of fame seems different—at once more effortless (on her part) and more intense (on her admirers’ part). Some sharply worded dissents in major cases; a defiant rebuttal to those who called for her, the 81-year-old justice, to step down so that President Obama could appoint her replacement; and a handful of pointed off-the-bench observations delivered in her soft-spoken way—that’s about all that she has done differently of late.

There are those eager to question the propriety of Justice Ginsburg’s recent remarks. Coming under particular fire are her comments expressing support for same-sex marriage, since the Court will be hearing a constitutional challenge to bans on same sex-marriage in April. In making these comments, she has crossed a line, some have said, abandoning a clearly established practice of Supreme Court justices letting their decisions speak for themselves. Some are even demanding that she recuse herself from the Court’s upcoming same-sex marriage case.

Some perspective here: These critiques are based on an inaccurate portrait of Supreme Court practice in the post-New Deal era. Although the public presence of the justices has waxed and waned somewhat in this period, the justices of the Supreme Court have a long record of public pronouncements on controversial issues, including issues facing the Court. If there is a norm of behavior for Supreme Court justices, Ginsburg has been well within its boundaries. Critics of extrajudicial statements are also nothing new. People have long claimed that various justices were threatening the legitimacy of the Court because of their extrajudicial statements. Yet the Court still stands, and the justices keep talking.

Rather than demanding some unrealistic and ahistorical monastic ideal for the members of the Court, we would do better to recognize the valuable role that justices can play when they come down from the bench to speak to the American people. Here is how I attempted to capture the value of extrajudicial speech in an article I wrote on this topic:

Even today, in a world of twenty-four-hour news cycles and over-exposed public figures, there is something distinctly powerful about a Supreme Court justice coming off the bench in order to express, directly to American public, his or her views on the Court, on the Constitution, on the role of a judge in a democracy. To be sure, a good deal of what justices say on these matters is banal and uninteresting—a kind of road tour of confirmation hearing talking points. But on occasion, a justice seems interested in doing something more. These moments, while not as rare as the justices and the press tend to claim, are uncommon enough so that when they do occur, the press, and a segment of the general public, take note. It is here that we find the potential of extrajudicial speech to add something distinctive to the public discourse.

Measured by this standard, I would say Justice Ginsburg deserves half a cheer for her recent celebrity forays. She is successfully engaging the public, sparking debate, educating her wide audience. But I wonder if too much of the discussion about Ginsburg, and much of the content of her interviews, revolve around her—her background, her experience on the Court, her coming out as a more passionate public voice of liberal values, her reason for staying on the Court. This is an important discussion—she is in many ways in inspiring figure. Her comments about her experiences as a female lawyer in a male-dominate profession offer important lessons in history, as does her discussion about her work as a pioneering litigator on behalf of women’s rights in the 1970s. But might there be an opportunity for engaging in a substantive discussion about the law and the role of the judge that is being lost in this fascination with personality?

When Justice Ginsburg talks about issues not related to her own experience, her comments seem to center on general observations about policy questions. Consider some of her most recycled lines from her recent MSNBC interview. She lamented the dysfunctionality of Congress. She referenced the intractability of racism in America. (“People who think you can wave a magic wand and the legacy of the past will be over are blind.”). She noted the effects of abortion restrictions on poor women.

Important points all, but they are points that could be made by any thoughtful, politically liberal public figure. Ginsburg gets a platform because she is a justice, yet she tends not to use this platform to discuss the issues that are particular to being a justice. We hear precious little about her views about the role of the Supreme Court in the American democracy. We hear little about her understanding of the process of legal interpretation. Why not use the platform to engage with these questions?

This is what Justice Hugo Black famously did when he took a public turn late in his long tenure on the Court. This is what Justice Scalia, at his provocative best, does. (Love him or hate him, he sparks debate about important issues relating to the role of the Court and approaches to constitutional interpretation.) This is what Justice Breyer aspires to do, even if he lacks the public persona and charisma to really pull it off.

But it is on this measure that I believe Justice Ginsburg’s recent media turn has come up short. Her public appearances seem to promise something more. Thus far, she and her adoring fans have not chosen to take advantage of this opportunity.

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