Thanks again to Eugene for inviting us to guest blog about Judicial Duty and the Supreme Court’s Cult of Celebrity this week. We would also like to thank the commenters, especially those who read our posts (here here here here and here) and/or the draft article. In this final post, we respond to a few of the comments.
(1) Some commenters suggested that we are addressing a nonexistent or unidentified problem. Even if these commenters don’t think there is a problem, or one worth addressing, we think there is clearly a gap between the approach to judging advocated by Senators and nominees of both parties at confirmation hearings and the actual behavior of the Justices. One could therefore think of our proposals as tools by which Congress could try to narrow that gap if Congress were (or were someday to become) serious about promoting the ideals to which everyone seems to subscribe at confirmation hearings.
Even if one assumes that nominees are just pontificating to score political points when they purport to subscribe to judicial modesty, neutrality, and restraint, we think it is worth asking why they feel compelled to engage in such hypocrisy, and how they might be induced to adhere more closely to their professed ideals. Our Anglo-American legal system has a long tradition according to which judges should strive to be mere oracles of the law, not politicians in robes, let alone philosopher-kings or media celebrities. Perhaps they can never succeed, or at least not completely succeed. Still, we argue, the Justices could become at least a little bit more like the traditional model, if not through their own efforts then prodded by institutional incentives that Congress has the authority to establish. That argument cannot be refuted by cynical and unsubstantiated assertions about the inevitability [...]