Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


Supreme Court: The Downside of Judicial Idolatry 

7/21/2015

0 Comments

 
Picture
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

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.




0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Aaron Tsui
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alexandra Kerrigan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Amanda Damayanti
    Anika Prakash
    Anna Schwartz
    Arshiya Pant
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Catherine Tang
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Ella Jewell
    Ella Sohn
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabrielle Cohen
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Hannah Steinberg
    Harshit Rai
    Hennessis Umacta
    Henry Lininger
    Hetal Doshi
    Ingrid Holmquist
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Khlood Awan
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyan Casamalhuapa
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Michael Merolla
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nathan Liu
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nicole Patel
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Paula Vekker
    Pheby Liu
    Pragat Patel
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Samantha Graines
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Tyler Ringhofer
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    September 2024
    May 2024
    April 2024
    January 2024
    December 2023
    November 2023
    May 2023
    March 2023
    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Powered by Create your own unique website with customizable templates.