Supreme Court: The Downside of Judicial Idolatry

By Alicia Kysar

Alicia Kysar is a rising senior at Columbia University studying English and Political Science with a concentration in Pre-Law.

During his appearance on a segment of “Meet the Press” in early July, Texas senator and Republican presidential candidate Ted Cruz criticized the current justices on the Supreme Court for “politiciz[ing] the Court.” He accused them of taking sides in the political arena, siding with President Obama’s policies even at the cost of delivering unconstitutional decisions. [1] He focused on the Court’s upholding of the Affordable Care Act and on its declaring gay marriage a federal right, two issues highly polarizing issues against which he has been very vocal. Whenever the Court makes a high profile, politically impactful decision, there are cries of political bias and of unconstitutionality, so Cruz’s claims are neither surprising nor unexpected.

Cruz then argued that the Supreme Court justices should be subject to retention elections to ensure that they continue to represent the needs of the people several years after their nominations to the bench. [2] The problems with this proposition are obvious and many sources were quick to criticize Cruz for suggesting it. One of the most salient arguments against his idea is that the role of the justices on the bench is unique in that they—ideally—remain accountable solely to the Constitution, and thus transcend the limitations of daily politics. Their freedom from seeking reelection allows them to express their legal conclusions—ostensibly the conclusions of the best constitutional scholars and judges in the country—fully and directly, without political maneuvering. The conception of the justices is that they, the ultimate voice in jurisprudence, rise above the fray of petty politics to perform authentic, unbiased legal analysis.

The increasing visibility of individual justices sitting on the Supreme Court, however, threatens to undermine the removed role, and the integrity of removal that it provides, of the justices in much the same way that Cruz’s proposal of retention elections would. Some justices today reach celebrity status while others remain largely anonymous behind their decisions. Ruth Bader Ginsburg is the most apparent example of an icon for young liberals. She is popular among that same demographic that considers sharing and liking political articles and petitions on social media to be a form of activism. Ginsburg herself encourages her fan culture, mentioning “Notorious R.B.G” (a play on “Notorious B.I.G”) and “you can’t spell truth without Ruth” in an interview with Jeffrey Rosen. [3] She appears to be equally parts pleased and perplexed at the attention that she and her judicial decisions are enjoying while also considering it in the context of the role of women on the Supreme Court and in leadership positions. Not only is she aware of the attention she is receiving, but she also revels in her role as a feminist icon, citing how much Sandra Day O’Connor’s legacy helped her find her place on the court.

Of course, Ginsburg is not the only justice to have received such public attention, although her rise in popularity is the most meteoric. Antonin Scalia has endured the criticism of the media and of the public for his reputation as a reliably conservative, originalist judge with staunch opinions and inflammatory rhetoric. When The New Republic described him as “incoherent,” it was among the kinder adjectives with which the mainstream media labeled him. [4] What many observers find most surprising is that Scalia and Ginsburg are close friends aside from the bench, engaging in lively legal debates for the public and sharing many interests, including, most notably, opera. [5] Derrick Wang composed and wrote the libretto for Scalia/Ginsburg, an opera that charts the legal disagreements between Scalia and Ginsburg while showcasing the brilliance of each. It premiered on July 11 of this year. Both justices gave the opera favorable reviews. [6]

The newfound popularity or infamy of specific justices, and the public personas that their followers craft around the justices, stem from several different sources, including the ease with which people share bits of information over social media. Ginsburg attributes it specifically not to a change in herself and her behavior as a justice, but rather to the changing circumstances around her, such as different types of cases coming on to the Court’s docket and the composition of the Court itself since Justice O’Connor retired.

“What really changed was the composition of the Court,” Ginsburg told Rosen, “And the cases since [she left the Court] in which the Court divided five to four and I was one of the four, but would have been among the five if [she] had remained. So I don’t think that my jurisprudence has changed, but the issues coming before the Court are getting a different reception.” [7]

Regardless of how the culture of adoration for specific justices has emerged, it is a trend with worrisome aspects. The unprecedented interest that especially young people display in Supreme Court decisions is positively correlated with the fan culture, and it is certainly heartening to see those as young as middle schoolers debating the most recent Supreme Court decision. As specific followings form around justices, however, the justices become prone to the pressure of public opinion from which they were spared in their past of relative anonymity. Although significantly less harmful than the immediate pressure that retention elections would exert on the decisions of the justices, the fan followings nonetheless implicitly and explicitly urge the justices to act in ways that are consistent with their public personas. The personas are often aspirational, and are based on previous decisions, but they threaten to compromise the integrity of removal that the justices enjoyed when they were lesser known, and thus to compromise the integrity of the Supreme Court as a whole.



[1] NBC News. “Ted Cruz on Supreme Court: The Justices ‘Put on an Obama Jersey,’” MSNBC (July 05, 2015).
[2] McCarthy, Andrew C. “Ted Cruz Is Right to Call for Retention Elections for the Supreme Court,” The National Review (July 04, 2015).
[3] Rosen, Jeffrey. “Ruth Bader Ginsburg Is an American Hero,” The New Republic (September 28, 2014).
[4] Posner, Richard A. “The Incoherence of Antonin Scalia,” The New Republic (August 24, 2012).
[5] Totenberg, Nina “Justices Ginsburg and Scalia: A Perfect Match Exceot for Their Views on the Law,” NPR: All Things Considered (February 13, 2015).
[6] Derrick Wang’s Official Page
[7] Rosen, Jeffrey. “Ruth Bader Ginsburg Is an American Hero,” The New Republic (September 28, 2014).

Photo Credit: Flickr User David Ohmer

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