Academic highlight: Sherry on the “Kardashian Court”

Against all odds, a surprising number of Supreme Court justices have morphed into celebrities over the last decade. Justice Ruth Bader Ginsburg has led the way: She is currently the subject of a documentary, a biopic, a music album, a Tumblr blog and a best-selling biography, and has earned the rapper-esque moniker “the Notorious R.B.G.” But she is not alone. Justice Antonin Scalia gave hundreds of public talks, speeches and interviews in his lifetime, often making controversial statements that generated headlines. There is even a comic opera about these two justices, entitled “Scalia/Ginsburg.” Justice Sonia Sotomayor wrote a best-selling memoir, made a guest appearance on Sesame Street and tours the country giving talks and interviews. All these extrajudicial activities are a break from past practice. A 2016 study by Richard Hasen found an eight-fold increase in the justices’ public appearances between 2005 and 2014 as compared to the 1970s.

So, are “celebrity justices” a problem? Yes, says Vanderbilt Law Professor Suzanna Sherry in her recent article, “Our Kardashian Court (and How to Fix It).” And, as her title suggests, she has a solution.

Like many observers, Sherry believes the Supreme Court is in a legitimacy crisis. She points to research showing that 75 percent of Americans think judges, including Supreme Court justices, decide cases based on their personal ideology, not the law. For the first time in the court’s history, every justice appointed by a Republican votes in line with conservative preferences more often than every justice appointed by a Democrat, which – regardless of the reason for the pattern – only confirms that perception. Citing Hasen and Richard Fallon, Sherry states that “public confidence in the Supreme Court has dropped”—though in fact more recent polls suggest that it is Democrats who have lost more faith in the court than Republicans. To Sherry, this polarization of support signals a crisis of legitimacy for the court, which she links to the justices’ newfound celebrity.

According to Sherry, the justices’ celebrity undermines the court’s legitimacy in at least two ways. First, the justices’ “ideologically polarized fan bases” contribute to the public’s sense that the justices are nothing more than “politicians in robes.” Second, Sherry argues that when the justices become the focus of such politically polarized public attention, they inevitably start to “play to their base” both on and off the court. As evidence of the latter, she points to the proliferation of concurring and dissenting opinions by individual justices, in which the justices appear to be defending or explaining themselves to their supporters rather than contributing to the body of legal knowledge.

In recent months, several scholars have proposed changes to the Supreme Court’s structure and appointment process to insulate the court from partisan politics and protect its legitimacy. Sherry thinks these fixes will fail, however, unless something is done to address the phenomenon of celebrity justices. And so she recommends that Congress enact a law requiring the court to issue only one per curiam opinion explaining its decision in each case. No justice would sign his or her name to the opinion, no vote tally would be recorded and no concurrence or dissent would be allowed. In a case in which a majority could not support a single written rationale for the outcome, the court would instead issue a one-line decision declaring that it had either affirmed or reversed the decision below, without further explanation.

Sherry hopes these changes would bolster the court’s legitimacy while eliminating the justices’ temptation to “fly their liberal or conservative colors” for the benefit of their fan base. “By speaking with one voice,” Sherry argues, “the Court increases its authority as an institution” — a view she notes was shared by John Marshall, Earl Warren, Learned Hand and Thomas Jefferson. An added benefit of her proposal is that it gives the justices a greater incentive to craft opinions that at least four other justices could support, which she hopes would lead them to “view themselves more as part of an institution and less as individual actors.”

Sherry devotes the second half of her article to addressing the potential constitutional and policy objections to her proposal. She argues that her proposed law would not violate the separation of powers because “[r]egulating the manner by which the Court can communicate its decision does not intrude on its ability to make the decision however and by whatever methodology or reasoning it chooses.” She readily admits that her proposal diminishes the ability of individual justices to explain themselves, but maintains that it does not intrude on the institutional power of the Supreme Court. To the contrary, she believes her proposal will preserve the court’s institutional legitimacy at a moment when public support for the justices is growing increasingly polarized.

Sherry acknowledges that eliminating dissents, concurrences and signed majority opinions comes with potential costs to transparency, guidance to future litigants and development of the law. She notes the historical value of dissents and concurrences in cases such as Plessy v. Ferguson, The Steel Seizure Cases and the early 20th century free-speech cases. And she recognizes that the anonymity of unsigned opinions undermines accountability and comes at the risk of turning the Supreme Court into a “faceless bureaucracy.”

Sherry concludes that there are costs and benefits to allowing each justice to issue a signed, individual opinion in each case. But she argues that, at a moment when many justices appear to be under the sway of our nation’s Kardashian culture, the costs of permitting individualized opinions are too high.