Must-See TV Note: "Deadlocked: How America Shaped the Supreme Court" on Showtime
David Shasha
https://www.sho.com/deadlocked-how-america-shaped-the-supreme-court
With ‘Deadlocked,’ Dawn Porter Expands Her Canvas
By: Robert Ito
“Deadlocked” is nothing if not ambitious.
Nearly four hours long, the docu-series tells the sometimes inspiring, often infuriating history of the modern Supreme Court, beginning with the momentous years of the Warren Court — desegregating schools, legalizing interracial marriage — and wrapping up in June, around the time reports about luxury travel provided by wealthy Republican donors to Justices Clarence Thomas and Samuel Alito prompted a broader conversation about Supreme Court ethics.
By that time, the director Dawn Porter had been working on “Deadlocked” for three years, and as much as she would have liked to have included, say, something about Thomas’s private jet trips or Alito’s fishing vacation in Alaska, she knew she couldn’t.
“We had to end the series somewhere,” she said.
“Deadlocked: How America Shaped the Supreme Court” premieres on Sept. 22 on Showtime and is the most expansive of Porter’s projects to date. Past Porter films have focused on single individuals at pivotal periods in history, like Pete Souza, the former White House photographer during the Reagan and Obama administrations (“The Way I See It”), and John Lewis, the congressman and civil rights leader (“John Lewis: Good Trouble”). Others have illuminated the lives of small groups of people working within political crucibles, like the abortion providers under siege in her 2016 film “Trapped.” Her films have won numerous awards, including a special jury prize at Sundance and a Peabody.
“Deadlocked” dwarfs all of those in scale. Over four episodes, we learn about the Supreme Court justices, along with the presidents and politicians who helped get them there, and the history-altering laws they forged (and, in some cases, dismantled) during some of America’s most tumultuous eras.
Porter never intended to tell a story this big, at least not at first. A former lawyer, the director hoped to tell a straightforward account of how justices are confirmed. Indeed, for a while, the film was simply titled “Confirmation.”
“I thought, well, there have been all these interesting confirmations, and we’ll trace them over time,” Porter said, in a video interview from her home in West Tisbury, Mass., on Martha’s Vineyard.
But that changed when the court’s conservative majority began making a series of decisions on divisive issues including abortion, gun rights and school prayer.
“I knew we had to do something bigger,” Porter said. “We needed to explain how the court had become so political.”
The shift held particular meaning for Porter, who graduated from Georgetown Law in 1993. “I lived on Capitol Hill on East Capitol Street and would walk in front of the Supreme Court every day on the way to school,” she said. “When you’re in front of that building, it reminds you of something great about our country. It reminds you that we have a fair judiciary.”
After serving five years as a corporate litigator, Porter was hired as director of standards and practices at ABC News. While there, she met the Academy Award-winning documentary filmmaker Morgan Neville (“20 Feet from Stardom,” “Won’t You Be My Neighbor?”), whom she helped secure the rights to ABC footage crucial to his 2012 film “Best of Enemies.”
“She was an in-house lawyer, but she was very interested in documentary,” Neville recalled.
Soon Porter was making her own, first as an executive producer and then as the director of her first documentary feature, the Emmy-nominated “Gideon’s Army” (2013), about a group of three public defenders in the American South.
“Dawn’s very interested in questions about politics and law and power, and she’s really good at rooting those things in character,” Neville said. “It’s one thing to analyze the law, but ultimately it’s understanding the characters that helps you understand the law, and Dawn’s great at that.”
For “Deadlocked,” Porter sought out a range of interviewees from across the political spectrum. “I didn’t want it to feel like some liberal diatribe,” she said.
The result is a distinguished group of legal experts and insiders, including Ruth Marcus, a Washington Post columnist; Erwin Chemerinsky, the dean of the University of California, Berkeley, school of law; John Bash, a former law clerk for Justice Antonin Scalia; and Theodore B. Olson, solicitor general under President George W. Bush.
“We kept adding voices to try to get a bit more editorial balance and perspective,” Porter said. “So we probably do have more voices than I’m used to.”
Even so, Porter knew complete objectivity would be neither possible for the series nor, for her, desirable. “I’ve made films about abortion activists,” she said. “The most important thing is to be transparent if you feel you have a bias or predilection for a certain outcome. So I tell people I’m pro-choice. I don’t pretend to an objectivity that I don’t have.”
Nor does she feel that audiences need to hear from both sides of every topic. “I think you can say certain things are true,” she said. “A president should not call for an insurrection. People should not be racist.”
The biggest challenge for Porter, she said, came from the justices themselves. “The justices would not speak to us,” she said. “And we wrote to them all.”
“I really thought that Justice Roberts might speak to us because he’s an institutionalist and he cares about the perception of the court,” she continued. “He’s a historian, so I was hopeful. But then, as we’ve all seen, the court’s reputation quickly came under assault by the time we knew what we were doing, so he respectfully declined an interview.” (A spokeswoman for the Supreme Court did not respond to multiple requests for comment for this article).
Stymied, Porter turned to the historical record to get a greater sense of how today’s court came to be. “There’s 200 minutes of archival footage, pictures and audio recordings in the series,” she said. “If you can’t get the individual to speak, the next best thing is hearing from the people who came before them.”
The highlights include footage of a youngish Senator Mitch McConnell in 1987 threatening to shoot down any future Democratic appointments in retaliation for the Senate’s rejection of Robert Bork’s nomination to the Supreme Court; Jay Floyd, a Texas assistant attorney general, making a sexist joke about the two female attorneys arguing against him in Roe v. Wade; and Richard Nixon, post-Roe, describing when an abortion might be necessary. (For instance, “when you have a Black and a white.”)
“Sometimes it was horrifying to hear what people would say,” Porter said. “But in some ways, it was a relief. It was like, no, I didn’t make this up. This is what they really believe.”
Her interviewees were essential in decoding the often arcane workings of the court. “I was a litigator, so I did a lot of depositions,” she said. “Most people want to talk.”
That is not always the case, however. When Porter was making “The Way I See It,” her 2020 film about Pete Souza, the former White House photographer, her subject initially had no interest in being on the other side of a lens.
“The first thing Pete said to me was, ‘I’m not in it,” Porter said. But Souza said Porter soon put him at ease.
“She just has a way about her,” he said. “She asked me some very pointed questions, but she has a way of doing it in such a professional and easygoing way.”
Kim Reynolds, a producer of several of Porter’s films, said the filmmaker “has a way of getting people to let their guard down.”
“I remember when I first met her," she continued, “I found myself telling her things I hadn’t really told other people.”
For “Deadlocked,” Porter talked to 30 interviewees in all. Though not interviewed, former President Donald Trump appears in footage and as a topic of discussion because of his extensive dealings with the court.
For example, Trump was prolific when it came to “emergency relief,” which are requests for justices to block undesirable lower-court rulings with unsigned and often unexplained orders — the so-called shadow docket — while cases work their way through the appeals process. Trump made 41 emergency relief requests, succeeding in 28. By comparison, “Deadlocked” notes, George W. Bush and Obama asked for emergency relief a total of eight times during their four collective terms.
Trump also inserted himself into the legal debate about Roe v. Wade, stating expressly that he would appoint only anti-abortion justices, and petitioned the court successfully to uphold his travel ban on Muslims entering the country.
“There were definitely a couple of films of mine where I was like, He’s not going to be in it,” Porter said. “In this film, though, we definitely couldn’t avoid that, because he is so central to the composition of this court.”
After three years of work that included several extensions, “Deadlocked” couldn’t be more timely, coming at a moment when the Supreme Court has been under intense scrutiny and when polls show public confidence in the institution at historic lows.
Porter, however, feels differently. “I actually have a lot of optimism,” she said. “I’ve seen so many examples in my work and in my life of people facing really difficult circumstances and prevailing that I’ll never give up on this court.
“I think if you care about democracy, you can’t give up on the Supreme Court. You have to care. You have to figure out how to make it what it should be.”
From The New York Times, September 8, 2023
‘Deadlocked’ review: Showtime doc surveys key Supreme Court appointments of recent decades
By: Richard Roeper
The four-part Showtime documentary series “Deadlocked: How America Shaped the Supreme Court” is an important and substantial work — something everyone should experience.
Granted, there are moments when we’re so deep into the legal weeds we start to wonder if this is going to be part of the mid-term, but the acclaimed and gifted director Dawn Porter (“John Lewis: Good Trouble,” “The Way I See It”) has delivered a comprehensive, provocative, occasionally startling work that focuses on some of the most impactful Supreme Court appointments of the last three-quarters of a century, from Earl Warren to Warren Burger to Thurgood Marshall to William Rehnquist to Ruth Bader Ginsburg to John G. Roberts, to the Trump trio of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
As we see how some justices believed the Court exists to interpret the law and not make the law, while others have clearly acted with a political agenda, it’s evident this series could have just as easily been titled, “Deadlocked: How the Supreme Court Shapes America.”
“Deadlocked” is filled with fascinating news clips that often speak volumes about a particular era, not to mention revealing audio (Richard Nixon can always be counted on to say something nauseating, as when he’s captured on tape saying abortion could be permissible in certain circumstances, including “when you have a Black and a white”), as well as insightful interviews with the likes of Theodore B. Olson, solicitor general under President George W. Bush; John Bash, a former law clerk for Justice Antonin Scalia; Washington Post columnist Ruth Marcus, and Linda Greenhouse, senior research scholar at Yale Law School. These talking-head clips are particularly valuable in a documentary series such as this, as the experts guide the rest of us through some admittedly dense material and put some generationally important Supreme Court appointments and decisions into historical perspective.
Episode 1, titled “The Hearts of Men Can Be Changed,” chronicles the careers of Earl Warren, who was chief justice of the Supreme Court in the landmark Brown v. the Board of Education ruling of 1954 that found state laws mandating racial segregation in public schools were unconstitutional, and Thurgood Marshall, who was arguably the most important civil rights lawyer of the 20th century and became the country’s first Black justice in 1967, serving until 1991.
We’re also reminded of the political genius of Lyndon B. Johnson, who named Justice Arthur Goldberg his ambassador to the United Nations, thus creating a vacancy for Johnson to fill the vacancy with his hand-picked choice of Abe Fortas. (Two years later, LBJ nominated Marshall to the court.)
In the second chapter, “A Conservative Revolution,” we see how Richard Nixon and then Ronald Reagan and eventually George H.W. Bush tailored Supreme Court nominations to suit their politics, while Episode 3, “The Rule of Five,” notes that of course Bill Clinton did the same thing in the 1990s, when, in the words of Pat Buchanan, there was “a war going on for the soul of America [with] Clinton and Clinton on the other side and George Bush … on OUR side.”
For an astonishing 11 years from the mid-1990s until the mid-2000s, there wasn’t a single Supreme Court vacancy, as Chief Justice William Rehnquist adopted a philosophy of not fixing what isn’t broken, and the Supreme Court regularly proved one could have judicial integrity even if rulings went against their personal beliefs. There was often legitimate mystery about which way the court would rule on a particular case, notes Marcus of the Washington Post. “You didn’t know the outcome” in advance of many cases, she recalls somewhat wistfully.
Cut to Episode 4, “Crisis of Legitimacy,” which chronicles how Senate Majority Leader Mitch McConnell wouldn’t even hold hearings on Barack Obama’s nomination of Merrick Garland because it was an election year; the Federalist Society rose as an increasingly powerful influence on Donald Trump and the Republican Party, and the Trump administration frequently invoked the “Shadow Docket,” aka emergency relief, asking the court to block unfavorable lower court rulings with unsigned and unexplained orders. For hugely important cases to be decided without full briefings, without oral arguments, without written briefings or signed opinions, is chilling, and seems to go against everything the majestic United States Supreme Court should be all about.
During the 16 years George W. Bush and Barack Obama were president, they collectively asked for emergency relief a total of eight times. In the four years Donald J. Trump was president, the Justice Department asked for emergency relief 41 times, and was granted all or part of those requests on 28 occasions.
From The Chicago Sun-Times, September 21, 2023
‘You want to think America is better’: can the supreme court be saved?
By: David Smith
When Dawn Porter studied law at Georgetown University in Washington, she would pass the US supreme court every day. “You walk by the marble columns, the frontage which has inspirational words, and you believe that,” she recalls. “You think because of this court Black people integrated schools, because of this court women have the right to choose, because of this court, because of this court, because of this court.”
Its profound role in American life is chronicled in Deadlocked: How America Shaped the Supreme Court, Porter’s four-part documentary series that traces the people, decisions and confirmation battles that have helped the court’s relationship with politics turn from a respectful dance into a toxic marriage.
Porter, 57, an Emmy award winner who maintains her bar licence, remembers first year common law classes when she studied the court’s landmark decisions. “Like most lawyers I have a great admiration for not only what the court can do but its role in shaping American opinion as well as American society,” she says via Zoom from New York, a poster for her film John Lewis: Good Trouble behind her.
“If there’s a criticism of the court in this series, it comes from a place of longing, a place of saying we can’t afford for this court to lose the respect of the American people. There’s going to be decisions over time that people disagree with. That’s not unusual. What’s unusual is how cases are getting to the court, how they’re ignoring precedent and the procedures by which the decisions are getting made. That’s where I would love people to focus.”
Deadlocked offers a visual montage of the court winding back in time: women and people of colour gradually disappear in favour of an all-white, all-male bench. They include Chief Justice Earl Warren, who heralded an era of progressive legal decisions such as Brown v Board of Education, a unanimous 1954 ruling that desegregated public schools.
Porter says of the paradox: “One of the things we were thinking is, isn’t it ironic that this all-male, all-white court is responsible for Brown v Board and for Roe v Wade [which enshrined the right to abortion] and you have the right to an attorney, which is Gideon v Wainwright, and you have the right to have your rights read to you. Yet when we have the most diverse court we’ve ever had, we’re seeing a rollback of some of these civil rights.”
In 1967, President Lyndon Johnson nominated the civil rights lawyer Thurgood Marshall to be the first Black man to serve on the court. A group of southern senators, almost all Democrats, sought to exploit riots in the major cities and fears about crime to try to derail his nomination. Marshall endured five days of questioning spanning three weeks and was finally confirmed by the Senate in a 69-11 vote.
There have only been two African American justices since: conservative Clarence Thomas and liberal Ketanji Brown Jackson. The first woman to sit on the court was Sandra Day O’Connor, a moderate conservative appointed by the Republican president Ronald Reagan.
“It takes a century of supreme court jurisprudence before we get a woman on the court. There’s an irony there that we have the current composition of the court and yet we have probably one of the most least hospitable courts to individual rights.”
The court’s relationship with public opinion has been complex, leading at some times, following at others. In 2015, it ruled that same-sex couples had the right to marry. The 5-4 decision removed same-sex marriage bans in 14 states – an acknowledgment of shifting attitudes and the rise of the LGBTQ+ rights movement.
Porter observes: “The court doesn’t have an army. It doesn’t even have PR or a media representative. The supreme court can’t change public opinion but what the court can do is either set an aspirational goal or it can reflect where the country is. For the gay marriage decision, that’s where the country was. The country was supportive of same-sex marriage and the court ratifies that public opinion and makes it law.”
Opinion polls show that a majority of Americans have also consistently supported reproductive rights. In Roe v Wade in 1973, the court voted 7-2 that the constitution protects individual privacy, including the right to abortion. Porter observes: “It’s not that controversial a decision by that time. More than half the states had reproductive rights access so it was only going to affect some of the states.”
At the time, Christian evangelicals were not opposed to abortion rights. “Evangelicals historically were pro-choice. This is where politics comes in and is on this collision course with the judiciary. Evangelical leaders like Jerry Falwell realised, oh, wait, abortion is a wedge issue and there are all these Catholic voters. So they come together.
“What the evangelicals want is tax exemption for religious schools. The Catholics don’t want abortion and together they’re a powerful voting bloc. They not only say we’re going to try and get the supreme court to change but we’re going to elect a president who is going to help us.”
These religious groups duly turned against the Democratic president Jimmy Carter, an evangelical Sunday school teacher, in favour of the divorced former Hollywood actor Reagan. Porter continues: “What you see is kind of politics at work. How can we get power? How can we get what we want? How can we form alliances?
“That alliance is very powerful because Reagan ends up having so many appointments to the court and you see the rightward shift of the court. These kinds of monumental changes don’t happen quickly but building blocks are constructed in these earlier years, like in the 80s, and they’ve continued to this day.”
The court’s role as a political actor was never more stark than in 2000, when its ruling in Bush v Gore terminated the recount process in Florida in the presidential election, effectively handing the White House to George W Bush. Porter notes: “It’s 5-4 to step in and stop the voting to determine who would be the next president of the United States. Sandra Day O’Connor later said she regretted voting with the majority.
“Also, interestingly, Justices John Roberts, Brett Kavanaugh and Amy Coney Barrett are all working with the Republicans on the side of soon-to-be President Bush. Is that illegal? No. Is it impermissible? No. Is it unethical? No. Is it interesting? Yes!” Porter says with a laugh.
But the ever-growing politicisation of the court became turbocharged – perhaps irreversibly – by the death of the conservative justice Antonin Scalia in 2016. Mitch McConnell, then Republican majority leader in the Senate, committed a professional foul by refusing to act on President Barack Obama’s nomination of Merrick Garland to replace him, insisting that the seat remain vacant in an election year.
Step forward Donald Trump, the Republican nominee for president who released a list of 11 potential supreme court nominees based on advice from conservative groups such as the Federalist Society and the Heritage Foundation. It was an unprecedented political masterstroke that comforted religious conservatives troubled by his unholy antics and past support for abortion rights.
McConnell is seen in Deadlocked asserting that “the single biggest issue that brought nine out of 10 Republican voters home to Donald Trump … was the supreme court”. This clip is from an address he made in 2019 to the Federalist Society, which has played a critical role in tilting the court to the right.
The group was founded in 1982 under the mentorship of Justice Antonin Scalia to challenge what conservatives perceived as liberal dominance of courts and law schools. Among its most prominent members was Leonard Leo, who oversaw the rise in its influence at the expense of the more liberal American Bar Association.
Porter says: “Leonard Leo is one of the most fascinating and yet not widely known political actors in our contemporary history. The Federalist Society realises: we can have influence in grooming judges and who’s getting appointed to the lower courts. Leonard Leo takes that on steroids and eventually becomes the person who former president Trump looks to create his list of potential supreme court nominees.
“In recent years Leo has secured a multibillion-dollar war chest in order to continue to groom and populate the lower courts with very conservative ideologues. Amy Coney Barrett is a product of that. Kavanaugh is a product of that. All the greatest hits are with Federalist Society influence.”
Sheldon Whitehouse, a Democratic senator, has called it “the scheme”: a decades-long plot by rightwing donor interests to capture the supreme court and use it to accomplish goals that they cannot achieve through elected officials. The Federalist Society is a receptacle for “dark money” – millions of dollars in anonymous hidden spending.
Porter adds: “The problem with private entities like the Federalist Society having so much influence and power is that there’s no insight into the source of their funds. We certainly do know that it’s not a coincidence that some of the interests of some of the most conservative folks seem to be being served by these appointments.”
Last year the rightwing forces achieved their greatest victory with a decision that once seemed unthinkable: the overturning of Roe v Wade after nearly half a century. Most Republican-led states moved to restrict abortion with 14 banning the procedure in most cases at any point in pregnancy. About 25 million women of childbearing age now live in states where the law makes abortions harder to get than they were before the ruling.
Porter had wanted to believe the court she admired as a student was a bulwark in defence of individual liberties. “Every pundit, every organisation, said Roe is going to be overturned and yet it was still hard to believe that 50 years later, when so many people rely on that decision, that it actually could be overturned.
“I will say it really did personally impact my feeling about the court. Reading the decision, there’s ignoring of history. It’s not a well-written opinion, it’s not coherent, and that’s really hard. We all need to believe in things and we all need to believe that these are the smartest people and that they’re able to put aside their personal beliefs and that didn’t seem to be the case.
“It was more than disappointing. It’s somewhat comforting that we have such a strong reaction to it but I see the cases of the women who have been so harmed by this decision. There are people have been forced to carry pregnancies to term that were not viable, people who just stay pregnant who didn’t want to be pregnant. You want to think America is better than that.”
As the final episode of Deadlocked acknowledges, the court faces a crisis of legitimacy. A series of extremist rulings out of whack with public opinion have come at the same time as ethics scandals involving the rightwing justices Thomas and Samuel Alito. The share of Americans with a favourable opinion of the court has declined to its lowest point in public opinion surveys since 1987: 44% favourable versus 54% unfavourable, according to the Pew Research Center.
Porter adds: “Every single person we spoke to for this series regardless of their political background – and we have Scalia’s former clerk, who wrote the decision broadening access to guns; we have Ted Olson, who argued Bush v Gore for President Bush; we have Don Ayer, who was a Reagan justice department official – is concerned about the reputation of the court and what the future holds if the court continues to chart its own path and not realise the delicate balance of our tripartite system of government.
“What if the court sides with a Trump who refuses to accept the results of the election next year? That’s what we’re talking about and a lot of the people who did the insurrection are still out there; we didn’t arrest them all. We’re in uncharted waters. It’s not a game and I don’t think anyone wants to actually put this to the test of: will our democracy survive?”
From The Guardian (UK), September 21, 2023