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CUTTING SOME SLACK FOR FIRST
MONDAY
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:
http://groups.yahoo.com/group/first_monday/
http://groups.yahoo.com/group/firstmondaytv/
Posted January 18, 2002
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