Read Judge Rosenthal’s 2019 Hallows Lecture at Marquette University Law School
Judge Lee Rosenthal has done a masterful job of explaining how we ought to live our lives in the law (and how we ought not to). Her warnings about the consequences of ambition without aspiration—especially for judges—are timely and troubling. While most district court and court of appeals judges exemplify Judge Rosenthal’s description of how aspiration tames ambition, many Supreme Court justices seem to be becoming overly ambitious.
One might think that Supreme Court justices would be the judges most likely to follow their aspirations rather than their ambitions. They have reached the pinnacle of their careers, what Judge Rosenthal calls the brass ring. What more could they be ambitious for?
In a word, celebrity. Supreme Court justices of all political stripes are writing books and going on book tours, appearing on television and in movies, and giving speeches not just about law but about politics and religion. As Professor Richard L. Hasen has put it, some justices have become “rock star Justices, drawing adoring crowds who celebrate [them like] teenagers meeting Beyoncé.”
What’s even worse is that the justices are seeking not generalized fame but adulation within particular ideological niches. We have Federalist Society justices and American Constitution Society justices. Many justices use their books and public speeches to telegraph their views on controversial constitutional issues. Each justice is, in short, playing to his or her fan base.
This is a new and dangerous development. As recently as two decades ago, justices worked in relative obscurity. They were more aspirational than ambitious, seeking to better understand and implement the law. They were, in other words, like most district court and court of appeals judges today. Not perfect, to be sure, but to the extent that they were concerned about their own reputations, they viewed those as resting primarily on the reputation of the Supreme Court as an institution. Now the Court seems less an institution than a collection of individual celebrities, competing for the attention of their adoring fans.
The consequences of this ambition to achieve celebrity status are bad for both the Court and the country. When justices play to their political base, they create the appearance—and, eventually, perhaps, a reality—that judicial decision-making is primarily ideological. As Judge Rosenthal points out, judges who are ambitious without aspiration are also all too sure of themselves. So the justices, both in their judicial opinions and in their extracurricular activities, present their one-sided views as the only correct ones. They are dismissive, sometimes to the point of incivility, of their colleagues’ views. Between the celebrity, the certainty, and the incivility, ambitious behavior by the justices is likely to convince the public that judges are just politicians in black robes. If so, the Court’s legitimacy will suffer. And if the Court loses its legitimacy, the country loses its greatest protection against governmental overreaching and majority tyranny.
What can we do about it? We should stop treating the justices like celebrities and start treating them like lawyers and judges. We should shout from the rooftops (or at least from the pages of law-related publications such as this one) that justices who play to their base are betraying their role and their principles. And, like Judge Rosenthal, we should take every opportunity to explain how to practice law aspirationally and to praise and thank those judges who do so. Thank you, Judge Rosenthal, for both telling us and showing us how to be a good judge.
This response and the 2019 Hallows Lecture were first featured
in the Fall 2019 issue of Lawyer Magazine
Suzanna Sherry is the Herman O. Loewenstein Professor of Law at Vanderbilt University.
