Curtail the Cult of Judicial Celebrity

Most structural proposals to reform the Supreme Court treat the symptoms and not the root causes. Too many Justices vote on the right: add more Justices on the left. Justices on the right serving longer than Justices on the left: impose term limits. The Justices vote on matters that are really important to you: strip them of jurisdiction to decide those cases. None of these approaches would actually change how the Justices decide cases. They would simply change who casts votes and on which cases. This contribution to the Civitas symposium on structural reform proposes that Congress curtail the cult of judicial celebrity, helping to ensure that the Court is seen as co-equal with the executive and congressional branches.  

A Supreme Court justice is a very unusual gig. For virtually all other public service, fame builds up gradually. One does not become a Representative, a Senator, or President overnight. Over time, these leading figures are tried and tested. By contrast, all the Supreme Court Justices were lawyers or lower-court judges who toiled in relative obscurity. But when a vacancy arose, they were immediately thrust into the highest echelon of government. And, for better or worse, they lacked much experience in the limelight. Once confirmed, Justices serve in that position for life. Suddenly, everyone wants to become their new best friend. They are invited to the swankiest places, worshiped by the most brilliant law clerks, and are rarely criticized in person.  

In some cases, a cult of celebrity forms. Perhaps the most egregious example is Justice Ruth Bader Ginsburg, elevated to the Notorious RBG. But this judicial worship is bipartisan. At his peak, Justice Scalia was lionized by the right as an icon. Invariably, this adoration can go to a person’s head. Justices are not exempt from the demands of human nature. And I think this fawning attention warps a Justice’s jurisprudence and distorts reality regarding retirement. Term limits might reduce how many years a Justice has to bask in the warm glow of judicial adoration. But these time constraints would do little to affect how Justices behave in office. Perhaps the most effective structural reform will be to curtail, or at least diminish, the cult of judicial celebrity. 

The task is actually straightforward: make the Supreme Court Justices feel like lower court judges. I would ask and answer two questions. First, what should they do when they are not working? The same sorts of mundane activities that lower court judges engage in. There should be no special perks for being a Justice. Second, what about outside income? Justices should not profit from their jobs. Any book royalties should be donated to the Holmes Devise. Congress could increase the Justices' salaries, but they would have the same cost of living as other judges in Washington, who have far fewer perks. As we say in Texas, these steps will make sure the Justices do not get too big for their britches.  

Abstain from the Special Perks of the Job 

Becoming a federal judge, at any level, involves an immediate elevation of stature. For the rest of your life, you will be identified as “Judge” or “Your Honor.” When you enter your workplace, everyone stands up until you sit down. You can ask whatever questions you’d like, but seldom have to answer any questions. You have near-complete control over your schedule and how you manage your chambers. Every year you can hire brilliant law clerks who can do much of your work without attribution. You never have to worry about budgets, finding clients, or losing business. No one, not even your superiors, can tell you how to decide a case in the first instance. Even if your decision is reversed on appeal, you can still maintain that you were right. Federal judges serve for life and decide when to step down. Indeed, some judges can even work out deals where their hand-picked successor will replace them.  

There are also perks that come from outside of the job. Judges are given a never-ending stream of invitations. Invitations to accept awards. Invitations to deliver keynote addresses. And so on. In almost all cases, these sorts of invitations were not available before the person became a judge.  

The perks of being a Supreme Court justice include all the above, plus much, much more. Instead of just being lauded in legal circles, the Justices are viewed as celebrities. At least on the left, the Justices hobnob with megastars. Justice Jackson was photographed for Vogue by Annie Leibovitz and received concert tickets from Beyoncé. Justice Sotomayor appeared on Sesame Street and co-authored a series of best-selling children’s books. The Notorious RBG became a cultural icon, and a biopic was made about her life. The Justices on the right have important, albeit less glamorous interactions. Justice Alito was the special guest of a German princess at her castle. Justice Gorsuch spoke at the Max Planck Institute. Justice Scalia went on a hunting trip with Vice President Dick Cheney. And so on. 

In recent years, a never-ending torrent of attacks has targeted the Justices for alleged ethical lapses. But these criticisms have largely missed the mark. In cases that matter, I doubt these outside influences will make much of a difference. The risk is not that the Justices will issue rulings that favor a particular party. Rather, the risk is that people with no pre-existing connection to a Justice will use their interactions to shape how the Justice views his or her role in the world.   

The Justices should follow the example of Odysseus—tie themselves to the mast and stuff their ears with beeswax to resist the luring call of the Sirens.  

As usual, change should start at the top. The Chief Justice serves as Chancellor of the Smithsonian Institution. Why? The Chief Justice lacks any formal training in research or museum management. Why would he hold this position? Chief Justice Roberts recently opined that serving as Chancellor is “the best thing about being the Chief Justice” even though he is the “one person in the room that really doesn’t know . . . what’s involved.” The first Chief Justice to serve as Chancellor was Roger B. Taney, who took over the position after Vice President Millard Fillmore became President. Moreover, in recent times, the Smithsonian has been embroiled in controversies with President Trump. It would make sense for the Chief Justice to step out of this field and any related controversies. Indeed, Congress should modify the law that requires the Chief Justice to serve on the Smithsonian Board of Regents altogether. 

On a similar topic, there is a custom in which members of the Supreme Court can borrow artifacts from the Smithsonian Institution, the National Archives, the National Portrait Gallery, and other federal repositories. This is a privilege, as best as I can tell, that is reserved for ambassadors, cabinet officials, and the President. Based on my research, the Justices have displayed priceless works of art in their chambers for years on end. This perk seems lovely, but the executive branch should end it.  

Other small changes can be made. On every court I’ve ever been to, the names of the judges are written on plaques in front of the bench. The Supreme Court is different. Everyone is expected to know who the Justices are. Indeed, the Guide for Counsel provides, “If you are in doubt about the name of a Justice who is addressing you, it is better to use ‘Your Honor’ than to address the Justice by another Justice’s name.” Wouldn’t it be easier to simply provide plaques for each justice, like in every other Court? The answer, I’m sure, would be that anyone arguing before the Supreme Court should know who the Supreme Court Justices are. That may be right, but it feeds into the celebrity problem.  

These steps are modest, but would at least signal to the world, and to the Justices, that they are not so special. 

Donate Book Royalties to the Holmes Devise 

Except for Justice Gorsuch, none of the current Justices published a book before joining the Supreme Court. Yet, after they joined the bench, several suddenly secured lucrative book advances and became best-selling authors. And to sell books, the Justices hold book events, where hosts are nudged to buy more copies. The Justices are clearly profiting from their public office. And because federal law excludes book royalties from limits on outside income, the advances will continue to grow.  

In my article Bilateral Judicial Reform, I proposed that Congress should impose caps on royalties. Of all my proposals, this one tends to be one of the most popular. What would happen to royalties that are earned above the statutory cap? For an uncharacteristic source of inspiration, I look to Justice Oliver Wendell Holmes, Jr. and President Franklin D. Roosevelt. Justice Holmes’s last will and testament included a residuary clause: all his remaining property was devised to the United States. And President Roosevelt recommended that Holmes’s devise should be used to promote the law. After some time, Congress established the Permanent Committee for the Oliver Wendell Holmes Devise, which would publish volumes about the history of the United States Supreme Court. The most recent volume on the Taft Court was published in 2023. 

Nothing would stop the current members of the Court from finding a similar charitable spirit. All royalties could go into the Holmes Devise trust, or some other worthy cause. I doubt any Justices would voluntarily surrender their one source of outside income. But if Congress took a logical step and imposed a cap, the Holmes Devise would be a viable conduit for the excess funds. 

These proposals would change nothing about the Court’s docket, decisions, or deliberations. But they would hopefully curtail the cult of judicial celebrity. Indeed, these proposals, more than Court packing, term limits, or jurisdiction stripping, would change how Justices understand their role in the operations of the federal government and would slowly change citizens’ perceptions of their stature in the government. affect  

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, is a contributing editor to Civitas Outlook, and is an adjunct fellow at the Manhattan Institute.