Regardless of one’s political ideology, it’s obvious the nine Supreme Court justices of the U.S. are special — their work unique and indelible, and not just because there’s only a few of them. Every term the court’s decisions are pored over, transcripts during oral arguments screen-capped and tweeted, their legal opinions argued among lawyers, professors, and reporters nationwide. Especially in a term like the current one has been: If the justices are Shaun White, Lindsay Vonn, and Nathan Chen, a term like this is the Olympics.
Sometimes, study turns into infatuation, and like any good love story, infatuation turns into a fairytale — a fairytale that Justice Clarence Thomas wishes would end, though it’s easy to see why the stories keep spinning.
Recently at the Law Library of Congress, Thomas said he regretted the “myth-making around the court and who we are” as justices and people, which has created a contrast between the “real world” of the Supreme Court and how it is portrayed outside the court. Judges and justices “don’t have the time, energy, or ink to engage in the narrative battles” ascribed to them by some in the media, Thomas said. An example? When a journalist pens that a justice decided a case “callously” – perhaps in reference to a death penalty case – but “those are people who’ve never stayed up in the middle of the night voting on it,” Thomas said.
His cohorts on the bench agree. During a recent panel at the University of Pennsylvania Law School, which included Justice Ruth Bader Ginsburg, Slate’s Dahlia Lithwick encouraged the media to dispel myth-making for fact and, according to SCOTUS blog, “suggested that depictions of her as cultural icon and judicial celebrity reduce the complexity of her personality and contributions to the law.” In an interview last week in the Los Angeles Times, law professor Rick Hasen suggested that “there is something disconcerting about Supreme Court justices becoming political rock stars.”
Justices should be portrayed as neither gods nor devils.
It’s certainly easy to find times when the media has ascribed personality traits to judges they’ve never met: The Supreme Court justices are to legal reporters what the Olympics are to NBC. Even a judge like Thomas, referring in a lecture to the court’s fantastical appearances in the media, is so self-aware the media can’t help but point it out.
Not to mention, often justices will say something genuinely fascinating and about which anyone with an interest in law will immediately ponder how the comment could relate to a case, past or present. In a recent interview, The Atlantic’s Jeffrey Rosen asked Ruth Bader Ginsburg for her thoughts on the #MeToo movement. She had a surprisingly nuanced take for a judge known to veer to the left on most issues. Due process mattered as much to her as the validity of addressing sexual harassment in the workplace.
Rosen: What about due process for the accused?
Ginsburg: Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.
Reason’s Robby Soave commented, “The fact that she immediately suggested college codes of conduct as an example of a policy that sometimes violates ‘the basic tenets of our system,’ says a great deal about the glaring unfairness of the modern approach to Title IX, the federal statute that requires universities to investigate sexual harassment and assault. And Ginsburg didn’t just make note of the controversy; she explicitly said critics of the current procedures have a point.”
Coupled together, comments like this, particularly if and when there is a future case that delves into these issues, simply beckon for legal enthusiasts to speculate and conjecture about meaning and an ultimate legal decision. Indeed, simply the fact that this interview ran, citing a female justice’s fascinating view on a current political movement, parallel to Justice Thomas wishing for less “narrative battles,” is about as ironic as a court hoping to hear a free speech case without any dissent from the other side. It is one thing to conjecture about a judge’s moral character or personality as a judge, and another to debate the ideas justices argue over during oral arguments and even occasionally in the public square, as Ginsburg recently did.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator’s Young Journalist Award.
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