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Wednesday, December 09, 2020

#researchpitch: Monetizing Your Supreme Court Tenure

It won't be me, but it seems to me that this is a natural research topic for someone to pursue, both as an examination of the contemporary Court and against some kind of historical backdrop. The closest I can come to a general discussion is not quite on point, although I was glad to find it: Richard Hasen's 2016 Green Bag piece Celebrity Justice. It focuses on the volume of extrajudicial statements made by members of the Supreme Court, and muses about its causes, costs, and benefits. He concludes that we are not likely any time soon to "run out of Justices willing to step into the public spotlight to educate, dish, defend, cajole, sell books, entertain, or just bask in the celebrity spotlight." If others are aware of more on-point treatments, I'm happy to hear about it; my search was quick and crude.

I would be interested in seeing a piece focusing more on the verb "sell." Do what degree have a larger number of contemporary Court members profited off of their status as Supreme Court justices? What small-e ethical questions does it raise? What is the relationship between cause and effect--between the justices profiting off of their celebrity and the justices enhancing their celebrity through at least partly profit-seeking extrajudicial enterprises? What is the complex connection between monetizing one's tenure with, say, a memoir, and the circus and controversy of confirmation hearings? Many people lament what those hearings have become, somewhat variously depending on the nomination in question, but the controversy and publicity of the hearings makes the post-confirmation memoir more valuable, raises the visibility of Supreme Court justices, and thus makes it more likely that the next hearing will be even more public and visible, that there will be a market for the next memoir, and so on. Is there a difference between the simple and well-compensated memoir or generalized set of musings and a more substantive work? (I think there is. I am less inclined to think ill of the books published by Justice Breyer and the late Justices Scalia and Rehnquist than of a number of others. But I'm happy to be pushed to change my mind or to distinguish some of those works from others.)

What about more indirect profit, such as the usual round of international travel and lecture or teaching sinecures that justices like Anthony Kennedy enjoyed? And what about second-order monetization, perhaps abetted or encouraged by the individual judge even if he or she is not the direct beneficiary? It is not hard to find public criticisms of Virginia Thomas for profiting off of her husband's celebrity status. The financial beneficiaries of various RBG books and movies include family members and associates (such as her personal trainer), and I assume her blessing or access were at least sometimes relevant to those enterprises. Success in politics is always potentially a profitable family business or ancient Roman patron-client relationship in the mixed quasi-aristocratic/mercenary culture we inhabit. Are things really all that different for at least the pinnacle of the judicial branch? Should they be?

Some historical background would be useful too. Of course the current justices are not the first to write books, and some of those books were as light on legal substance as some of the present generation of books. But there may be significant differences in degree of profit. Justice Douglas was highly prolific. But I'm not sure he is a model we should want to follow.    

In any event, it's a fertile subject and I would love to see a comprehensive article or book on it, or at least a symposium on the celebrity justice phenomenon that addresses it decently.    


Posted by Paul Horwitz on December 9, 2020 at 12:21 PM in Paul Horwitz | Permalink


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