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

Christine Corcos


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The writers try to make graceful virtues out of very awkward dramatic necessities. They need to inform the audience that, for example, an even split on the Court means the appellate decision is upheld. They need to create some dramatic tension between Nolan and her colleagues, showing that she will not be a cypher on the Court. But all things being equal, and good writers can make them equal, why not use the opportunity to present accurate information about the Court? Why not educate the public while entertaining it?

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by Christine Corcos

The temptation to compare CBS' Supreme Court series First Monday and ABC's The Court is great, especially since both shows boast talented casts and impressive production pedigrees. Like First Monday, The Court treats us to experienced actors who really know how to get the most out of their material and scripts that confront issues important to all of us. But the ABC drama's premiere highlights some important differences. For one, The Court also includes some characters who serve as outside commentators on the action--a helpful dramatic device that provides viewers with a contrast to the academic discussion that could plague the show. For another, the writing is better than on First Monday-more pointed, tauter, less mannered and cliched.

That said, I have some reservations about the first episode, "Life Sentence", and they arise not so much from the legal issue presented, but from the behavior of the new Justice, Kathleen Nolan (Sally Field, and not to be confused with the actress, Kathleen Nolan). The issue discussed is important-whether "three strikes" laws that mandate a life sentence for the convicted are constitutional under the Eighth Amendment. Many of Nolan's comments and activities, taken individually, are unlikely but possible. Taken together, they suggest that we will have to take her judicial abilities on faith, because she is truly wet behind the ears.

First of all, Nolan has no track record as a judge, a point mentioned several times in the episode. Why is she attractive to the President? She's a moderate and she's a popular politician (Governor of Ohio, an important state in Presidential elections). Reality check: The last politician appointed to the Court was Earl Warren, also a governor (from California). He was so political that he went along with the internment of Japanese-Americans during the Second World War.
Nolan also seems absolutely astonished that she is the President's nominee, and seems not to understand that in order to get confirmed one must convince a majority of Senators that one should be confirmed. A successful politician, as she is purported to be, would have no problem understanding that fact. What is the point? That she doesn't really want the job? Or that she wants it, but not at the cost of her soul?

Certainly that is seems to be the theme of some of the scenes, such as the one in which she objects to making courtesy visits to influential Senators who could assist her confirmation. Her maverick stance is admirable, but it doesn't get votes in real life. And I simply cannot believe that such a rebel, charming though she is, would have been elected as Governor of Ohio. Indeed, Nolan's sole claim to the President's attention is that she is a high-profile Governor, and she would have been elected based on her ability to achieve consensus (I used to live in Ohio. The politics can be brutal-trust me). Either she is a consummate politician, who gets what she wants done by carefully crafting coalitions, or she is an independent thinker, who does not. Both in one person, the second emerging as her true self when she sees the possibility of a lifetime appointment (her "life sentence") are possible, but seem more like a Hollywood fiction.

The nominee eventually memorizes her lessons well with the help of the President's advisors, who coach her in classic responses to hot button questions: "I cannot express an opinion on that issue. To do so would be to suggest that I had prejudged the case." Is she really so naive that she does not already know that? Ohio like many other states elects its judges and every election year there is much debate over what judge candidates "really" think on any issue, versus what they can actually say.

Nolan shows up after her confirmation at her new Chambers, and asks her clerks, who are partying late in the evening (a tradition instituted by her beloved predecessor) to help her get up to speed on a case due to be discussed and decided in conference the next day. The now orphaned clerks have been farmed out to other Justices pending the swearing in of a new member of the Court. Nolan tells them she will talk to them in a few days about their futures but for right now she needs their assistance. She sends the two male clerks off to get the briefs and tapes of oral argument and asks the female clerk (Nicole DeHuff) to help her box up the dead Justice's belongings. That they would still be there laid out on the desk seems unlikely. That Nolan would ask the one female clerk to help her carry out household chores seems odd. (Unless she thinks that guys can't put stuff in boxes carefully).

I can understand that Justice Nolan would like to hear the oral arguments on the case, but why right away? By tradition, Justices not on the Court at the time of oral argument do not deliberate on cases. Why create a dramatic situation in which Nolan, a "newbie" who lacks both allies and any history of judicial decisionmaking, has to buck 200 hundred years of tradition? And why present her as successful, in that she manages to push the Chief Justice, in a few minutes of uninspired discussion, into scheduling reargument of the case? Is the point that she is "her own woman", not for sale to anyone?

Of course, a lot of this discussion is for the benefit of the viewing audience. The writers try to make graceful virtues out of very awkward dramatic necessities. They need to inform the audience that, for example, an even split on the Court means the appellate decision is upheld. They need to create some dramatic tension between Nolan and her colleagues, showing that she will not be a cypher on the Court. But all things being equal, and good writers can make them equal, why not use the opportunity to present accurate information about the Court? Why not educate the public while entertaining it?

Likewise, the writers try, and mostly succeed, in making the controversy over the "three strikes" issue understandable to viewers who might otherwise think no discussion was necessary. Journalist Harlan Brandt (Craig Bierko)'s use of the experiences of both Nolan and the woman sentenced to life in prison is an effective method of posing important questions about the responsibility of society to provide equal access and equal opportunity-never mind equal justice.
Many of the plot twists seem destined to be played out in future episodes, such as the exact nature of Nolan's relationship with onetime student Brandt, the "real story" behind the mysterious "Nolan mess" that Brandt uncovers in a trip to Nolan's home town (Cleveland), and Nolan's real position on privacy issues and abortion. As a practicing Catholic she might be expected to be against the death penalty and against abortion; her guarded comments in the first episode suggest the opposite. And, unlike most female lawyers on tv, Nolan has a supportive husband. Like Queen Elizabeth II, who was up a tree in Kenya when she succeeded to the British throne, Nolan's husband is up the side of a mountain and inaccesible when she gets the call to Washington. Of course he should be supportive-it's his second marriage and she apparently has helped him raise his children, but they have none of their own as one Senator offensively points out during her confirmation hearings. Hubby (and by the way, she doesn't use his name professionally) knew she was a career woman when he married her, and he's Catholic, also--two reasons that he's morally bound to hang around. The possibility of some marital tension down the road adds to the details that make Nolan a much more interesting character than Joe Novelli, her counterpart on First Monday. It remains to be seen what the series will do with them.

The rest of The Court cast is excellent, from Diahann Carroll as a liberal colleague looking for allies to Chris Sarandon as a similarly left-wing justice seemingly unaware of the scorn in which some of his brethren hold him, to Pat Hingle as a conservative intent on holding the line against crime. Miguel Sandoval is the Hispanic representative on the Court. As an aside, I am always amazed at the number of Hispanics, blacks and women represented in the television and movie judiciary; it's a much higher percentage and has been, historically, than is true in real life. Here popular culture does us a favor by giving us images of what we could be.

Betsy Tyler (Christina Hendricks), the aspiring journalist, already has a lot of dimension as a woman making her way in a male-dominated profession, much as Nolan does. Her colleague, the sour Harlan Brandt, however, seems furious that his legal career did not give him the job satisfaction he seems to think himself entitled to. He affects a loner attitude toward his boss and societal rules--he may think he's dangerously attractive and inspiring, but he's childish and cliched. I hope this character develops some depth, particularly because his narrative voice is so important to the stories.

With ABC's The Court, television has a second chance at presenting the Supreme Court to American viewers in an interesting and educational as well as entertaining way. The writers need add weight to Field's character, especially since she is so pretty in the conventional sense, and older viewers still remember her from her 1960s television series: Justice Gidget or Your Honor Sister Bertrille both bring up images they will have to work hard to erase. For that reason, I would have preferred an actress who projects more "weight" as the incoming justice, if only to add credence to the conceit that she was the President's only choice for the vacancy. But perhaps casting Field as Nolan points out a difficulty that women Supreme Court justices have: reinventing themselves, particularly for those who remember them as law students, law professors, or politicians. The contrast between her patient acceptance of the Chief Justice's sophomoric joke at her expense during her first Justices' conference and her assertiveness in other scenes makes me think that the writers will actually spend some time exploring the problems that women professionals in general have in a man's world. The Court gives us Sally Field as Justice Nolan, and on balance--I like her. I really, really like her.

Posted March 28, 2002

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