Sunday, October 23, 2016

On the Web, Cults of Personality for Ginsburg, Thomas

      Welcome to the brave new world of Supreme Court fandom! Two of the current justices, one from each of the ideological blocs, now have web sites created by ardent fans to celebrate their lives, times, and jurisprudence.
      Ruth Bader Ginsburg has her Notorious R.B.G. tumblr, a site created by the then-law student Shana Knizhnik as she was inspired by Ginsburg’s forceful dissent in the court’s decision in 2013 to gut the Voting Rights Act. The site is a richly illustrated, constantly updated buffet of tidbits and morsels from Ginsburg’s opinions and effusive toasts from her admirers along with links to RBG T-shirts and merchandise.
      Not to be outdone, Clarence Thomas’s fans have built two online sites: an all meat-and-potatoes site created by the Washington lawyer Mark Paoletta, a veteran of the Thomas confirmation fight; and the Justice Clarence Thomas Appreciation Page, an in-construction blog that replaces a web site previously maintained by the unidentified author.
      Each of the sites unapologetically glorifies its subject. The Notorious R.B.G. home page promises “Justice Ginsburg in all her glory.” Paoletta describes Thomas on the site’s home page as “a stalwart defender of the original meaning of the Constitution” who “has led the Court back to that all-important document.” The Thomas appreciation page includes speeches and opinions from Thomas and news articles or columns, seemingly all selected to show Thomas not only as forceful and insightful in his opinions but also as generous and approachable off the bench.
      The Thomas web site appears to be newly created, based on the 2016 copyright date at the bottom of the home page. Paoletta, who helped win Thomas’s narrow Senate confirmation as a member of the White House counsel’s office, is not identified on the site but was identified as the creator in an op-ed written for The Hill, the political website chronicler of all things Washington. Paoletta did not respond to requests for an interview for this column; an email request sent to the “contact” address for the Thomas appreciation page also went unanswered.
      Paoletta created a separate website,, to counter what he viewed as the false account of Thomas’s contentious 1991 confirmation in the HBO docudrama Confirmation that aired in the spring. The home page describes the program as “a work of fiction . . . with imaginary scenes, fictional characters, and a biased agenda. . . .”
      In his op-ed, Paoletta joins several other of Thomas’s fans in criticizing what they see as the slight to Thomas in the newly opened National Museum of African American History and Culture. Thurgood Marshall, the first African American justice, apparently gets his due as the architect of the legal fight against racial segregation. As the second black justice, however, Thomas appears only indirectly in an exhibit that includes a picture of Anita Hill, the law professor who accused Thomas of sexual harassment while she worked for him at the Equal Employment Opportunity Commission.
      The critics see an ideological bias against conservatives in the museum’s curation. Paul Mirengoff, writing for the conservative web site Power Line, goes so far as to suggest that conservatives should boycott the museum in protest. The Smithsonian’s only published reply to date has been somewhat weak. “We cannot tell every story in our inaugural exhibitions,” Linda St. Thomas, the Smithsonian’s chief spokesperson, said in an email to Christian News Service.
      Whatever slight there may be, Paoletta arguably made up for it in advance by exaggerating Thomas’s impact at the Supreme Court. Under the heading “Jurisprudence,” Paoletta lists and includes links to 23 of Thomas’s “most significant decisions.” But only one of the so-called “decisions” is actually a majority opinion written for the court. The 22 others include 11 separate concurring opinions and 11 dissents. The compilation underlines not Thomas’s influence but in fact his lack of influence because of idiosyncratic views rejected time and time again by his colleagues, including his fellow conservatives.
      Thomas wrote for all four conservatives in only one of the dissents, and the case demonstrates the oversimplified description of Thomas as committed to originalism in constitutional interpretation. The court in U.S. Term Limits v. Thornton (1995) struck down an Arkansas law imposing term limits on members of the state’s congressional delegation. For the dissenters, Thomas found authority for the measure in the Constitution’s clause authorizing states to regulate “the time, place, and manner” of congressional elections. The majority equally relied on text and original meaning to conclude that states had no authority to add to the qualifications listed in the Constitution: minimum age of 25, at least seven years of U.S. citizenship, and residence in state.
      Through omission, Notorious R.B.G. also exaggerates Ginsburg’s influence. Visitors to the site might not guess that Ginsburg has relatively few major decisions to claim as author or that her liberal colleagues have been at least as forceful as she in their dissenting opinions —  for example, Justice Stephen G. Breyer in his 2007 dissent in a school desegregation case or Justice Elena Kagan in her 2014 dissent objecting to sectarian prayers in legislative sessions.
      Supreme Court watchers who prefer footnoted law review articles might find these sites unsatisfying, but they do make the court’s work more accessible for the Internet era. Sadly, however, the idolizing puffery may make an already overly politicized court appear to be that much more partisan as partisanship rages unabated outside the Marble Palace.

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