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STRIPPING THE BLACK ROBES
OFF THE JUSTICES: THE SUPREME COURT IN POP CULTURE
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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