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Sunday, February 25, 2018

McGinnis on the Cult of RBG: A Sympathetic Dissent

I have written in recent months about my concerns over cults of personality or hero worship around judges: the relationship of this phenomenon to clerkship culture, its particular application to celebrity treatment of Justice Ruth Bader Ginsburg, and other matters. Those concerns have something to do with various work I'm doing, however slowly, on eventual law review pieces. At the often-interesting Law and Liberty website, Professor John McGinnis has a very readable piece on the "Notorious RBG" question, titled "The Troubling Apotheosis of the Notorious RBG." (From what I think one can fairly call a different part of the political spectrum, Professor Richard Hasen also recently published a piece criticizing this phenomenon. Concerns about the celebrity treatment of Justice Ginsburg, or any other Justice, and about some of her public statements, are not confined to the right. Indeed, one thing that struck me about recent Twitter and online commentary was that many conservatives who have criticized Justice Ginsburg for her extrajudicial statements wrote approvingly of recent public statements she made about the importance of due process in Title IX proceedings, without mentioning broader concerns about extrajudicial statements on legal issues that may come before the Court or about issues that are part of current political debate. Our concerns about this phenomenon should not end where our agreement with some particular public statement begins.)

McGinnis argues that the recent "adulatory" treatment of Justice Ginsburg, including not only her recent set of public appearances and friendly interviews but the industry of T-shirts, books, and workout guides--in our society, everything is eventually, and generally instantly, commodified--"raises concerns about the left’s model of a justice and of justice [itself]." The core of his column is that the "Notorious RBG" question is fundamentally about the tendencies of "the left." He concludes:

Other justices on the left side surpass her in other ways. As I have written elsewhere, Elena Kagan is both a fine stylist and the only equal of John Roberts on the current Court when it comes to the smoothness of deploying doctrine.  But Kagan and Breyer are by political science measures not nearly as far to the left as Ginsburg in their voting patterns.  And thus it is hard to avoid the conclusion that the veneration of Justice Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice.

As I said, the phenomenon disturbs me too, as does the general tendency toward adoring treatment of judges on the part of too many lawyers and legal academics, often former law clerks imbued with American clerkship culture, a treatment that is almost always accorded to those judges whose views are consistent with the political views of the person engaging in the veneration. Those concerns are heightened when the adoration is not just a one-sided thing in which the object of the celebrity treatment takes no part in it and does not encourage it, but one in which the object rather seems to enjoy and participate in that phenomenon, and/or takes to making general public pronouncements on various issues, which is a common element in modern American celebrity culture.

But I disagree with McGinnis's take, which seems to me to make one major mistake, and also to err more generally in not offering a richer, and less left-targeted, picture of American culture--including the American culture of hero-worship and the increasing tendency to elide the idea of heroism and the status of "celebrity." I should add that this is an adaptation of a Twitter (sorry!) thread that readers encouraged me to turn into a blog post, so doubtless it carries over some of the flaws and tendencies toward generalization of that medium. And I should make clear that I am addressing the "Notorious RBG" phenomenon, and some of Ginsburg's extrajudicial conduct, far more than I am addressing Justice Ginsburg herself, especially in her capacity as a judge, although I think her rash of recent public statements raises fair questions about whether she should either refrain from such conduct and avoid public appearances more generally, or consider leaving the bench. 

First, McGinnis concludes that the adoration of "The Notorious RBG" must be about the left and crude left politics, because Ginsburg has not been an extraordinary justice and certainly is not as good as other, but perhaps less reliably "left," justices. Setting aside any debates on the quality of Ginsburg's work as a justice, I think this is starting point is seriously flawed. It treats the "Notorious RBG" story as beginning once she joins the Court and having little or nothing to do with the whole arc of her professional life. But a major source of the adulation of Ginsburg has to do with what she fought for and achieved before becoming a judge. Thurgood Marshall is similarly treated as a judicial hero, not primarily because of his work on the Court, which even some (or perhaps, albeit quietly, many) legal liberals think of as lackluster, but for his incredible work as a civil rights lawyer and architect of Brown v. Board of Education. Starting the "Notorious RBG" calendar in 1993 ignores all that she did as perhaps the greatest architect and champion in the past 40 or 50 years of women’s legal and constitutional rights.

There’s also little or no cultural or sociological sense in McGinnis's piece of the general American love of hero worship, and the way it leads hero-worshippers to read facts through the lens of their hero worship, emphasizing favorable facts and minimizing or ignoring inconvenient ones. This is a general American (or human) tendency, and it is hardly the sole property of liberals or “the left.” (Personally, I wish people would use terms like "the left" or "the right" far more precisely and selectively, especially when they are treated as nearly synonymous with "liberal" or "progressive" or with "conservative," let alone "Democrat" or "Republican." That's especially true for lawyers and the legal academy, who are generally establishment-oriented and less likely to be truly and interestingly politically radical.) The piece also ignores other relevant and more personal factors, which could be seen either as related to or as independent of the prior factors: She is in her eighties, and continues to speak out passionately on the Court on issues that deeply affect women in particular. Moreover, and on a personal level, for some it may matter that her beloved and widely admired husband passed away in recent years, leaving the Court and her work on it as a major solace. (Or so it may appear from the outside, including outsiders who love and admire her. I cannot say whether she views things in this fashion or not.)

Taking these together, I think the view is something like this: She has long been a hero for women’s rights, predating her time on the Court and continuing today. She is a role model for her achievements and her fierce determination and independence. Given all this, and given the (unfortunate) tendency of Americans to treat one’s status as a hero as generally applicable and almost indefeasible once conferred, she is entitled to do and say more or less what she wants--or, putting it in favorable or adoring terms, to "speak out"--and to sit as long as she cares to. On this view, she has earned such a right, and suggesting otherwise--let alone focusing on her rather than another, male Justice--violates or attacks her earned hero status and all that she did to earn it. (The gender-focus question was especially perceptive and pertinent early on, when some commentators were suggesting that she step down and not saying much about Justice Breyer, but before Ginsburg had engaged in any especially questionable extrajudicial statements. For that reason, it has less bite today, in my view.) Any misbehavior is either irrelevant, or should be treated as an unfair and strategic basis for "attacks" on the justice, or is interpreted through the lens of hero worship, and thus minimized or ignored, or treated as not affecting the bottom line that you don’t attack a hero and that she has earned the near-absolute right to sit as long as it makes her happy.

That’s a more interesting story, in my view, and a more complete one. It is especially important that this story doesn’t depend on making claims about “the left” that treats liberals as unique rather than exhibiting widely shared human tendencies.

None of this, of course, is a defense of RBG or the cult of RBG worship. We should not treat past heroic conduct as conferring some kind of lifetime license to act as one pleases. We should not ignore, simply because one is a hero or seems mentally sharp, the possibility that the hero is affected by age and suffering lapses of judgment as a result. (General intelligence, or even genius, is not synonymous with good judgment in decision-making, especially spur-of-the-moment decision-making.) We should not ignore the possibility that the hero judge--whether Ginsburg or any other judge and regardless of that judge's politics--is treating his or her hero status and lifetime tenure as a license to make improper extrajudicial statements. We should always worry when a hero seems to believe her own publicity or to revel in being worshipped, a common and understandable human tendency that leads to hubris and its consequences.

We should reject the general temptation to treat judges as heroes, and the current tendency of our unfortunate culture to mistake heroism, a form of virtue, with celebrity, a form of trivia and cult of personality, or to combine the two. We should treat unwise or improper conduct the same regardless of whether the person committing it is a hero or a “villain.” We should recognize, especially (and especially today) that offices of honor are defined by unceasing duties and responsibilities rather than being prizes for past achievement. Given that judges can age and suffer lapses in judgment, that they are “votes” as well as people and that none are irreplaceable, we should reject the “sit as long as you like—you’ve earned it” view, and be willing to encourage even heroes to step down when the moment has come. We should not create cults of personality and especially celebrity around judges, both because that is immature behavior and because it may have the perverse effect of injuring the very person it seeks to exalt, by tempting him or her to believe the publicity, treat it as a license rather than a responsibility, and become immured in an epistemic bubble.* And a judge’s family and close friends should serve as a reality check and as candid advisors, including warning against isolation, offering hard criticisms, and encouraging silence or prudence or even retirement, not as fans or an amen corner. Nor, although it is understandable, should they encourage such a person to do anything that will make him or her happy. Judges are already insulated enough; they need people to tell them hard truths and give tough advice. (To be clear, Justice Ginsburg's inner circle may be doing all the right things, for all I know. It is possible that she is receiving excellent advice of this sort from her loved ones and closest advisors and simply disregarding it—or, with all due respect, that her age is affecting her judgment on these questions. Even brilliant people, while remaining intelligent and energetic, can suffer from the effects of age on judgment. In any event, I certainly have no inside knowledge on these questions.)

We should, indeed, resist the lure of hero worship altogether, and resist even more strongly our cultural worship of celebrity as such—especially for judges and other office holders. These are general aretaic questions, applicable to us all, and it’s a mistake to treat these questions of how to live as just another tool in the culture war or as being about “left” versus “right.” They run deeper than that.

* On Twitter, I wrote after this passage, "I think Robert Bork ended up surrounded and insulated by fans in whose eyes he could do no wrong, and that this affected and hurt his disappointing post-judicial writings." A family member wrote to say that I was quite mistaken to think so. I will happily acknowledge that I may indeed be, and that, as with what I say about Justice Ginsburg and the advice she presumably receives from close friends or family, I pretend to no inside knowledge on those factual questions. I do think that two of the most dangerous things that can happen to one's judgment are to be a subject of widespread public scorn or a subject of widespread public adulation, both of which, often working in concert ("my enemies prove how right I am and how vicious they are, and my supporters vindicate my views and encourage me to stick by them; from now on, I will live and work in and among my supporters and away from my critics"), can distort one's independent judgment. But even if I'm right about that, I can't assume that this applies in any individual case unless I have more biographical facts to work with. I do think Bork's post-judicial writings were far from his best. But I was grateful--ultimately--to be brought up short by this criticism.   

Posted by Paul Horwitz on February 25, 2018 at 10:05 AM in Paul Horwitz | Permalink

Comments

The late Justice Scalia could also be described as "ethically challenged" (Prof. McGinnis's terminology), but that's apparently OK from McGinnis's perspective because Scalia delivered "reliably right wing results."

Posted by: Doug Richmond | Feb 26, 2018 9:23:32 AM

To make a small comment in response to Asher’s:

People of a certain age might remember Bork from the hearings. Others may have heard the term “Borked” and investigated what it was about. I don’t think I’ve ever met a non-lawyer or law student that knew who Posner is. Certainly I think a lay Republican audience would be far more excited to see Thomas or Alito for that matter.

Posted by: Brad | Feb 25, 2018 11:10:20 PM

I think the problem is that RBG is rarefied only because she is alive, whereas most liberals teach more of Brennan and Marshall's opinions and dissents from the 60s and 70s than Justice Notorious. But they need a thin female hero, and needless to say Brennan and Kagan don't fit the mold.

Posted by: common-a-thon | Feb 25, 2018 11:00:21 PM

I will gather "you" is the professor but will reply once to try to provide another viewpoint. Will then leave things be.

Clarence Thomas is quite popular among many conservatives, including those who are not in the profession of law. He also has made many popular appearances and unlike her has personally written his life story. Many (along with Scalia) cite him as a model, including when saying who would make a good judge or justice. If he is not an "icon" to many people, the term to me is being used somewhat restrictively.

Scalia did not reach his broad popularity because of his judicial craft alone, especially among non-lawyers. Those who cite him or Thomas as ideal justices to the degree they are the go to guys for Republican politicians aren't just deeply familiar about his originalism scholarship and his judicial opinions.

And, even to many of them, his biting tone and colorful language [again, many legal minds will find her "workmanlike" opinions better exercises of legal craft; a symbol of merit] was what made him a "cult" figure particularly. If RBG's "florid" dissents and tone is apparently what appeals to "the left," consistency please.

Many liberals honored RBG for years. It is quite true that her colorful nature and consistent liberal results appealed but the same applies to Scalia and Thomas on the other side. There is nothing special about that and singling out one side there contra Prof. Hasen's approach is biased. And, her current popularity is in large part a matter of the moment. This is not refuted and stating it by itself is not the problem with the piece. But, conservatives saw Scalia as a forceful voice contra to liberals in the moment as many do regarding Thomas now.

This doesn't warrant belittling her other accomplishments including the fact that supporters "vaguely gather" she has a feminist past. Her supporters might 'gather' this because so much has been written about it and she regularly speaks about this herself. Her career "distinguishes" her, including her role as a trendsetter in the area of gender law. There is nothing "left" about honoring an elderly veteran of anything.

Kagan, e.g., has not been a judge for over thirty years. And, those Jezebel readers who stereotype the Supreme Court as merely a 5-4 institution probably don't think RBG and Kagan have much different results. Plus, Kagan is very likeable and has "florid" and snarky dissents. So, RBG fans would in that sense likely think Kagan was "reliable" and should find her quite copacetic.

It is not that RBG is uniquely good as a justice as much as a public spokeswoman for the times. A conservative in another context would be treated the same way. Again, as long as their accomplishments are not diminished unnecessarily, an evenhanded discussion is fine. Either way, I don't think liberals are looking for grandmotherly exercise types for justices per se though all sides find "endearing" judges as seen by people who are fine with conservatives but found Gorsuch to be a bit of a jerk. There is nothing special about "the left" here though.

Finally, we are limited by a small sample set. But, in a lesser way, various judges have been particularly honored by certain groups. Examples from various sides can be cited there.

Posted by: Joe | Feb 25, 2018 7:32:45 PM

I think McGinnis is closer to being right than you. Legal conservatives have had somewhere between one and three cult heroes in recent memory, depending on whether you count Posner and Bork, Scalia being the obvious one. All of them made large and in Scalia and Posner's case massive intellectual contributions to the law. All of them were exceptional writers of judicial opinions, i.e., the work product on which judges are (supposed to be) judged. It seems extremely unlikely that Alito and Thomas will ever become conservative icons, anymore than Rehnquist did, though they reliably vote for conservative-preferred results, write better than Ginsburg in Alito's case and in Thomas's case are considerably more interesting and original thinkers. For whatever reason, legal conservatives demand more of their heroes than reliability and extreme competence.

Now, it's true that Ginsburg had what may fairly be described as a heroic life as an advocate. But knowing that fact, liberals didn't deify her as a lawyer, or as a D.C. Circuit judge, or even as a Justice until 20 years into her time on the Court. What changed? After Stevens's retirement, Ginsburg, as the Court's senior liberal, started assigning herself some big dissents, like Shelby County; a little before that, she made news by suggesting in her dissent in Ledbetter that Congress overrule the majority's decision, which Congress did in a law named for Ledbetter after Obama's election. Anybody who thinks these workmanlike dissents are tour de forces of judicial craft hasn't read many opinions, and indeed, many of the biggest Notorious RBG mythmakers and fans aren't even lawyers. They just like that someone is writing dissents (which they associate with takedowns of conservative views of the sort they might read on Jezebel) in these big cases, really irrespective of the dissents' reasoning or contents (though they especially enjoy anything floridly denuciatory), and that the person doing it is a charismatic, endearingly grandmotherly woman with a sprightly workout routine, and who they vaguely gather has a feminist past. This does, I think, say something about what liberals like in a Supreme Court Justice.

Posted by: Asher Steinberg | Feb 25, 2018 2:30:50 PM

"And thus it is hard to avoid the conclusion that the veneration of Justice Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice."

I find comments like this tedious. It is unclear to me that the people cited here (red flag alert: "the left") somehow find Kagan and Sotomayor as second rate liberals. Many also don't particularly love RBG as justice as such but who she is as a whole.

As noted, and the biography co-written by the person who was the source of the "notorious" label underlines this, RBG is particularly respected for her long career including before she was on the Court.

The dig at her not being "particularly distinguished" is a cheap shot as well as missing this basic point -- she is distinguished, if not in the ways the author of the piece narrowly defines terms. I'm sure people here can also defend her legal craft as a judge as being "distinguished" as well. The piece therefore is useful to examine in large part for the myopic views of the author.

The piece by Prof. Hasen is evenhanded -- it isn't about RBG in particular but about his concern about hero worship in general. I think it only natural that people will honor certain "heroes" though the limits of us all (even our family members) and concerns of judicial propriety warrant care here. The distance between role models and heroes still is something of a fine line; don't think role models are bad in the minds of most.

At any rate, there various reasons, including RBG's ability to be friends with an ideological opposite, to honor her. The op-ed cited however feels a need to demean her and her supporters instead of taking a more evenhanded approach. This is unfortunate.

Posted by: Joe | Feb 25, 2018 12:59:57 PM

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