Editor’s Note: Steven M. Klepper of Baltimore’s Kramon & Graham recently delved into the world of comic book and action heroes to honor a Maryland judge with an affinity for action-hero movies. On a blog sponsored by the Maryland State Bar Association’s litigation section that he edits, Klepper created action hero avatars for nine retired and deceased U.S. Supreme Court justices. At the NLJ’s request, Klepper agreed to similarly analyze how the sitting justices might take their places in a SCOTUS Justice League.
Alexander Bickel’s famous Supreme Court analogy, “nine scorpions in a bottle,” doesn’t fit the Roberts Court. The dominant story of the last term was unanimity. The justices genuinely like each other. They’re more like a superhero team. They spend a lot of time squabbling, but in the end they’re a team, doling out justice while wearing dark costumes.
The two worlds are colliding, with a pending petition addressing Marvel movie rights and with the “Superman v. Batman” movie in production. Here, then, is my list of the justices’ superhero counterparts.
• John Roberts is Captain America. The chin. The blue eyes. The patriotism. The natural leadership. The propensity for bumper-sticker aphorisms like “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The chief justice of the United States is our Star-Spangled Avenger.
• Antonin Scalia is Spiderman. Since his creation in the 1960s, Spiderman’s distinguishing personality trait has been his constant barrage of midbattle quips. Scalia tops Professor Jay Wexler’s Supreme Court laughter standings, year in and year out, by drawing the most “[laughter]” notations in the court’s official transcripts.
• Anthony Kennedy is Superman. At one end of the Justice League of America, you have the Green Arrow, whose arsenal includes the “boxing glove arrow.” At the other end, you have Superman, who is so powerful that writers struggle to contrive situations in which his teammates are nonsuperfluous. Kennedy was in the majority of every 5-to-4 opinion last term. On hot-button issues like abortion rights, public prayer and marriage equality, Kennedy may as well be the only justice sitting.
• Clarence Thomas is Hawkeye. I’m thinking of Jeremy Renner’s taciturn movie version, more than the motor-mouth from the comics. Hawkeye claims, “I see better from a distance.” Thomas sees constitutional issues from 227 years’ distance. Hawkeye, despite marksmanship that would easily translate to firearms, uses retro bow-and-arrow weaponry that diminishes his impact. Thomas is so retro that he wants to overturn The Slaughter-House Cases from 1873. His uncompromising jurisprudence leads to fascinating solo opinions but likely diminishes his impact on the court.
• Ruth Bader Ginsburg is Wonder Woman. Only the most iconic comic book hero is worthy of being linked to the Notorious R.B.G. Ginsburg has become an Internet folk hero during the past few years. Every sharp Ginsburg dissent instantly appears as a Twitter meme.
• Stephen Breyer is Batman. Above all else, Batman is a brilliant detective. Superman can just charge off to fight any enemy, but Batman, lacking superpowers, is deliberate. He’s sometimes indifferent toward privacy rights, such as when he commandeers every cellphone in Gotham to find the Joker in “The Dark Knight.” Breyer is deliberate to a fault. He doesn’t agonize over certiorari votes. He assumes that, if an issue is sufficiently important, it will present itself in a future case. Breyer often provides the conservatives the critical fifth vote when Scalia joins the liberals in Fourth Amendment cases.
• Samuel Alito is Nightcrawler of the X-Men. On a team with a surplus of antiheroes, Nightcrawler, a devout Roman Catholic, stands out as the moral center. Alito brings a strong sense of moral decency to the court, particularly in his dissents from rulings extending First Amendment protections to funeral protests, crush videos and ultraviolent video games.
• Sonia Sotomayor is She-Hulk. Bruce Banner’s cousin is an attorney who never liked New York City firm life that much. She moonlighted as a member of the Fantastic Four and Avengers, and she recently left a big firm to start a solo legal practice. Sotomayor, after seven years of private practice, happily took a pay cut to become a federal trial judge, and she rapidly ascended to Earth’s Mightiest Court.
• Elena Kagan is Kitty Pryde of the X-Men. Pryde is a world-class genius who hails from the Chicago suburbs. From the time she joined the X-Men at age 13, it was clear that she’d be a mainstay. Kagan, after a brief stint in private practice, got her start at the University of Chicago. She is the youngest justice, by five years, and it was clear from the start that her abilities gave her a chance at being an all-time great.