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


Michael Asimow



Read other reviews:
Chris Corcos
Rob Waring
Paul Joseph

Taunya Lovell Banks
First Monday web site
Internet Movie Database
New York Lawyer
Corpus Christi Caller-Times

CBS press release
Christian Science Monitor




The premiere of First Monday dramatized some serious issues about the death penalty, about last-minute legal maneuvering by counsel to stop executions, and the ways that politically divided judges and justices grapple with this sort of crisis. Bringing these issues before the public is a valuable service.

Feature article


By Michael Asimow

The United States Supreme Court resolves a huge number of fundamental social and political issues, problems that are resolved in political venues in every other country. Bush v. Gore was only the most conspicuous and recent example of the centrality of the Court in our political life. Yet, the Court functions behind a veil of obscurity, its oral arguments off limits to television and the conferences of the justices shrouded in total secrecy. The bland legalese of the Court's written opinions masks the often nakedly political calculations of the justices and the horse-trading for votes that produced a grant of cert and a majority opinion. Except to the cognoscenti, the role of the justices' law clerks is totally unknown. Thus, when popular culture tries to demystify the Supreme Court and explain its workings to the general public, critics should welcome the effort.

That's why I'm trying to put a favorable face on the premiere of First Monday, despite the fact that just about everybody in the media and the legal community has trashed it. The fact is that, despite its immense importance, the inner workings of the Supreme Court are really boring to everybody except legal geeks.

The politics and personalities of the executive branch make for riveting drama on The West Wing and in numerous movies, most recently The Contender (2000). Particular Supreme Court cases viewed from the outside can make great drama--witness People v. Larry Flynt (1996), Amistad (1997), Gideon's Trumpet (1980), or the Emmy-winning episode of The Practice in which the firm tried frantically to secure a last-minute stay of execution for a condemned man. But it's really difficult to make stories about the internal workings of the Supreme Court entertaining to a mass audience. Previous movies about the Court, such as First Monday in October (1981) and The Pelican Brief (1993), were real duds. So let's give some credit to First Monday for attempting the perhaps impossible.

Others will, no doubt, demolish the easy targets. A lot of First Monday was downright silly (such as the judges joining hands and vowing to "make history" like a high school football team getting psyched up for the big game). Some of it was stupid and offensive (such as the oral argument in the asylum case about the transsexual in which the justices question the litigant who happens to be sitting at the counsel table). The issues about asylum for refugees are profoundly important and deserve serious treatment rather than mockery. Clerks definitely do not date the lawyers, at least not while the lawyer's case is pending before the Court. And so forth and so on.

But I confess that I liked parts of the show. Looking past the nonsense, the central part of the drama was pretty good. It concerned the efforts to stay the execution of a retarded prisoner in Florida who had been convicted of a murder occurring when he was 16 years old. The prisoner was struck by lightning while being negligently exercised by prison guards during a thunderstorm. He argued that being subjected to death by electrocution twice was cruel and unusual punishment.

Maybe this is a frivolous contention, but that's what lawyers for condemned prisoners often are reduced to. In any event, it's not so frivolous. See Louisiana ex rel Francis v. Resweber, 329 U.S. 459 (1947), in which four justices thought that it was cruel and unusual to execute a prisoner after the electric chair had malfunctioned in the first attempt to execute him. Much more fundamental, of course, is the issue of whether the death penalty can and should be applied to offenses committed by juveniles. Finally, at the last possible moment, the clerks found evidence in the record that the killing had been accidental rather than deliberate, an issue that had been overlooked by everybody from the trial on up. Considering the abysmal level of legal representation in capital cases in the South, this sort of thing is all too common.

The premiere of First Monday dramatized some serious issues about the death penalty, about last-minute legal maneuvering by counsel to stop executions, and the ways that politically divided judges and justices grapple with this sort of crisis. Bringing these issues before the public is a valuable service, and I, for one, am willing to cut First Monday some slack if it is prepared to dramatize issues like this on a regular basis. It's light years better than the pathetic rubbish about judges presented every day on Judge Judy and her all-too-numerous clones.

I liked the frantic efforts to secure a stay of execution and the poignancy of the show's dramatic conclusion in which it was impossible to contact the prison to stop the execution because its phone system had gone down in the rain. I liked the politicking that surrounded the denial of cert because the Chief Justice was able to turn around the fourth vote for granting cert by threatening to embarrass one of the justices by what he had once written in a law review article. I liked the way Justice Novelli was forced to grapple with a highly contentious stay of execution during his first day on the job and the way he and his clerks rose to the occasion. I liked the way First Monday depicted the efforts of the law clerks to force the death penalty issues onto the agenda of the justices (and the way other clerks worked to keep the issue off the agenda). I liked the way the various justices maneuvered to draw Novelli into their camps. And I especially liked that the justices were portrayed as ordinary human beings, warts and all. OK, some of them seemed like buffoons--but at least they weren't presented as godlike creatures in black robes who lack personalities and personal lives.

Most of what the Supreme Court does is pretty boring, but stays of execution or major political cases like Bush v. Gore or Roe v. Wade are anything but boring. The Court deals with such monster clashes of values as abortion, the right to die, hate speech, endangered species, and on and on. Its pivotal role in our democracy and the highly political way it decides cases are widely misunderstood. So let's give one cheer to a team of producers, writers and directors who are prepared to dig out some marketable drama in the Supreme Court and bring it into our living rooms.

Chat rooms:


Posted January 18, 2002

Would you like to comment on this article? Please submit your comments here.

 Top of page

 Home | Silver Screen | Small Screen | News & Views