Picturing Justice, the On-Line Journal of Law and Popular Culture

Michael Asimow


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We need to demystify the Supreme Court and get people to understand that these are just politicians of the third kind. The justices, and their decisions, deserve no more deference or respect than do those of the President or Congress. Deference and respect must be earned by the quality of the product, and the values that infuse that product, not by virtue of the institution that produces them.

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by Michael Asimow

Most people know almost nothing about the Supreme Court--who the justices are, what sorts of cases it decides, how it goes about deciding them. Occasionally, as in the case of the Bork or Thomas nominations, or epochal struggles such as Bush v. Gore, the Court pops up on television news or the front page of the newspaper. Then it retreats back into the shadows. It labors in obscurity, its bland and wordy opinions read only by a few law geeks. Television and radio, of course, are excluded from oral arguments, and that means that for most people, the Court barely exists at all. Whatever people might have learned about the Court in high school civics, they've long since forgotten. Besides, it was all wrong anyway.

The obscurity that surrounds the Court is tragic, since it is of such surpassing importance to every human being in America. On so many issues, the Court is where the rubber hits the road. Whether the issue is abortion, campaign finance reform, public funding of religious schools, military tribunals, the death penalty, attorney advertising and literally thousands of other vital public policy controversies--the Court gets the last word. Do people really understand that a woman's right to choose is hanging by a hair in the Supreme Court right now? Who are these black-robed demigods and goddesses with life tenure? Do they sit on a judicial Mt. Olympus, far above petty politics, dispensing justice guided only by a splendid impartiality and respect for precedent? When they went on the Court, was it like joining a monastic order, putting their personal lives and all human temptations behind them?

Well, actually, no. It's nothing like that. The justices are bare-knuckled, power-hungry, deal-making, intensely ideological politicians, not at all different from those you'll find over at the White House or in the halls of Congress, except that they wear black robes and skillfully avoid public accountability. If ever this was in doubt, Bush v. Gore dispelled that doubt. We need to demystify the Supreme Court and get people to understand that these are just politicians of the third kind. The justices, and their decisions, deserve no more deference or respect than do those of the President or Congress. Deference and respect must be earned by the quality of the product, and the values that infuse that product, not by virtue of the institution that produces them.

That's why television shows about the Supreme Court are so very important. Popular culture provides the only way that the general public gets to peek at the inner workings of an institution as mysterious to them as though it operated on another planet. Television lets us watch the justices going about their work, striking deals, horse-trading, doing politics. We see the tremendous power and importance of law clerks, who, after all, are barely out of law school. And we come to understand that the cases the Court decides, day in and day out, often by votes of 5-4, transform our public life in so many fundamental ways.

Thus I applaud First Monday and The Court. Both shows effectively demythologize the Supreme Court by showing the justices as ordinary human beings. They also treat them as political players, exercising immense but unaccountable power, unconstrained by anything except their own philosophy and values. Long may these shows reign! As some critic said of First Monday, "May God save this honorable court from cancellation."

Especially The Court. I really liked its debut. Well, not quite everything about the debut. The confirmation hearing was pretty lame, with Kate Nolan's refusal to say whether she'd ever had an abortion being the only highlight. I would have gotten a couple of episodes out of the confirmation fight, replaying the Bork and Thomas dramas, so that people can be reminded how brutal such fights can be (and certainly promise to be in the future when Bush nominates an Ashcroft clone to replace Justice Stevens). I expected the dynamic journalistic duo to unearth their skeleton in time to affect the confirmation hearing -- otherwise, who cares? The story line involving the clerks of the deceased justice being passed around to the other justices, and sharing memos, was not dramatically effective (although their party was fairly funny). It's obvious that we'll need several episodes to get to know the large cast of justices, clerks and journalists (but that was true of West Wing also). I'm willing to make the investment.

I thought the writing of the show was crisp and witty--far superior to the lame dialogue we've cringed at during episodes of First Monday. Some of it compared favorably to The West Wing. I thought Sally Field was entirely believable in the role, and I loved the slightly corny ending when she sits alone at the Justices' table and contemplates the incredible power that she now holds in her hands. I could imagine myself doing that. I liked that the other justices are not buffoons, as some of them are on First Monday. It's a mistake to treat Supreme Court justices as comic figures; they need to be treated, as West Wing treats its characters (including both protagonists and antagonists), as serious, motivated, and powerful political players.

And best of all, I liked the scenes at the end when Justice Nolan jumped into her first conference, on the tremendously important issue of the constitutionality of three-strikes legislation. She had not heard the oral argument and would be expected to recuse herself. On the contrary, she forced an evenly-divided Court to rehear the case so that she will get to vote on it at the next term. This infuriated her brethren and sistren, and it was a truly gutty (and rather savvy) move for a brand new justice. More power to her!

The clever way the three-strikes case played out reminded me of the way that Brown v. Board of Education evolved in the early 1950's, as recounted in Richard Kluger's Simple Justice. When Brown was argued for the first time, the Court was sharply split. Possibly there was a narrow majority for ending segregation and overruling Plessy, but the decision would been deeply divisive and probably quite ineffective in rooting out an institution as deeply rooted as segregation. Justice Frankfurter persuaded the Court to rehear the case, with the litigants asked to brief issues relating to the legislative history of the Fourteenth Amendment. Providentially, Chief Justice Fred Vinson (who clearly opposed overruling Plessy) died just before the new term opened. Frankfurter remarked to a former clerk,"This is the first indication I have ever had that there is a God." Eisenhower appointed Earl Warren as the new chief justice. Warren turned out to be pretty much the exact opposite of what Eisenhower expected, on racial issues no less than many others. The rest is, as they say, is history.

So let's hope that The Court can continue to generate high drama and empathetic characters, that it will dwell on big issues and make them concrete to millions of people, that it will become The West Wing of the most dangerous and least accountable branch.

Posted April 1, 2002

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