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September 18, 2023
Strict Scrutiny
Lights, Camera, SCOTUS!

In This Episode

On September 22, Showtime and Paramount+ will release the first episode of Deadlocked: How America Shaped the Supreme Court. And if you tune in, you might recognize a few faces and voices. Documentarian Dawn Porter joins Kate, Melissa, and Leah to talk about how the series came to be, and what she learned about the Supreme Court’s evolution in the process.

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TRANSCRIPT

 

 

Show Intro Mister Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. This is a very special episode of Strict scrutiny on September 22nd. That is this Friday, Showtime and Paramount Plus will release Deadlocked How America Shaped the Supreme Court. A four episode docu series that pulls back the curtain on our favorite institution. The Supreme Court.

 

Leah Litman May be least favorite, depending on which Supreme Court we’re talking about. But anyways, joining us to discuss the terrific docu series and the court more generally is the force behind the camera celebrated documentarian Dawn Porter, who directed the film. Welcome to Strict Scrutiny, Dawn.

 

Dawn Porter Thank you so much. It’s such a pleasure to geek out and be here with you all.

 

Kate Shaw Well, we’re really delighted to have you and our listeners are likely to know who Dawn Porter is, because they’ve probably watched one of her fantastic films in recent years. But a resume like yours, Dawn, deserves to be discussed in some detail. So we’re going to do that just briefly. Dawn is a graduate of Swarthmore College and Georgetown University Law Center, and she left a more traditional legal career to work in film. But it is not clear you can ever really leave the law behind.

 

Melissa Murray So Porter first began her career in film as an executive producer, but she soon discovered in classic Hollywood style that what she really wanted to do was direct. And specifically, she wanted to make and direct films about the law. Her first film, Gideon’s Army, which chronicles three black public defenders working in the South. Premiered at Sundance in 2013, and it won the festival’s documentary editing award and its Creative Promise award. So not too shabby. For your first time out, it would go on to earn an Emmy nomination and to win the right it our award for the best documentary film of 2014.

 

Leah Litman And she followed up on that success with Spies of Mississippi, a documentary about the Mississippi State Sovereignty Commission and its efforts to preserve segregation during the 1950s and 1960s. And she followed that up with Trapped, which chronicled the Jackson Women’s Health Organization, the last operating abortion clinic in Mississippi, to document the impact of the targeted regulation of abortion provider laws, trap laws and other antiabortion regulations on abortion access in the South. It was searing then and seems oddly prescient now.

 

Kate Shaw More recent works include The Way I See It, a documentary about Obama White House photographer Pete Souza, John Lewis, Good Trouble, which is about the late civil rights hero and Congressman John Lewis and The Me You Can’t See: Prince Harry’s documentary with an assist from Oprah on mental health and wellness. And she’s back in full force with Deadlocked. And this time her keen eye is trained on the Supreme Court. So let’s get into it.

 

Leah Litman So, Dawn, you originally planned to title the docu series confirmed. Was the original idea to focus on the confirmation process or how did the project evolve into its final form?

 

Dawn Porter Well, you all have eagle eyes. And yes, if you are a person who is a lawyer turned documentarian, you believe, perhaps somewhat mistakenly, that just the confirmation processes alone are enough to create a four part docu series. And really, I was motivated by I think we were all well, I was horrified and yet riveted to the Kavanaugh hearings and of course, to the Clarence Thomas hearings. But then so then I started poking around and seeing what Justice Ginsburg’s confirmation hearing was. And then I went all the way back to look for Justice Warren’s confirmation hearing. And yet behold, there was no confirmation hearing because he did not have to appear. Some people can just call up and say, put me in coach. And so, you know, the original idea was to really focus on the role, the interaction, the interplay of government institutions, because I think people are not quite focused enough on the fact that the Supreme Court is not acting in isolation. It is part of a tripartite system of government. And one one part is out of whack, is not operating the way that are, you know, the Constitution presumes it really impacts not only the entire country, but it also impacts how government is functioning. And so I was I was interested in drawing those topics more closely together.

 

Kate Shaw Yeah. And you really actually it’s that’s a great kind of explanation. You can when you say that see on display, not just these kind of inter branch dynamics that you’re talking about, but the interaction between these moments of confirmation where the public’s attention is really, you know, laser focused on the Supreme Court and what happens in the wake of those confirmations when there is a personnel change, the way Supreme Court opinions and jurisprudence shapes presidents and also just the way circumstances can sort of align to create conditions under which confirmations occur and, you know, occasions. We don’t occur because you, of course, talk about failed nominations as well. So that’s a really illuminating explanation. And I think we’d like to hear you talk a little bit more about your creative process and then also kind of the timing of pulling all of this together. So that’s a bit of the evolution of the project. And, you know, it’s coming out at an incredibly germane moment. The court is so topical, enormous public attention trained on the court. So do you kind of plan for the film to hit at this moment when public interest in and scrutiny of the court feels like it’s at this fever pitch?

 

Melissa Murray Dawn, did you tell Justice Thomas to take that private jet? Were you the one?

 

Dawn Porter I did not. The way that this all started, as I worked at ABC News and was there at the same time that Vinnie Malhotra, who was the executive at Showtime who greenlit the series, was there. And so we’ve had a long professional relationship. And he called me, I guess now it’s three years ago and said, Do you want to do something on the Supreme Court? And I said, Yes. And it really just started there. And there wasn’t a particular format. It could have been a feature, could have been a multi-part series. And when I so first I was really interested in these confirmation hearings, and that’s why we called it confirmation for so long. But then as the research as we got into the development process and started thinking about what we wanted to communicate to people, what I discovered was an appalling lack of information about the court, its its origins, its role, its its jurisdiction, just as to how justices are appointed. And so from there, it grew into something bigger. And, you know, I mean, a lack of visual opportunities to discuss the court. And, you know, I do want to give like a really sincere thank you to what you all are doing, because you’re you’re allowing people to understand what otherwise feels really mystifying to ordinary people. A lot of people don’t tune in to the court unless they’re court watchers or court reporters or practitioners until something affects them. And by then it’s too late. And so, you know, what what you all were doing with this podcast with with your your work is really making sure that all of us who are so intimately affected by the functioning and decisions of this court understand how it works. And so I really wanted to add some more visual medium to that growing body of people trying to explain what is happening before it’s too late to actually participate.

 

Melissa Murray That’s really flattering to hear that you were sort of trying to do some of the things that we’re doing that you see what we’re doing. We really do believe that everyone needs to be watching the court all of the time. But what we loved about this docu series is that you could film a million different documentaries about the court and they could all be really different. But for this particular series, you chose to focus explicitly on the court in the 20th and 21st centuries, and you start with the Warren Court and this idea that the Warren Court is an activist court. This is the charge that conservatives and moderates level against the Warren Court in the 1960s. Now, to be fair, some scholars, including Justin Driver, who also appears in the film, have argued that the Warren Court is actually not that liberal. It’s actually more conservative than many give it credit for. But nonetheless, it has taken on the sort of mythic stature as being this very, very liberal court that pushed the country all the way to the left by acknowledging the existence and humanity of black people and criminal defendants. And they didn’t really get into women, but perhaps they paved the way for the Burger Court to get into that. But why do you think that the Warren Court has taken on this kind of stature, which really doesn’t map on to the full body of its decisions? And how does that reputation for wokeness liberal ness, whatever you want to call it, how does that shape the trajectory of the court in the 20th and 21st century and its interactions with politics?

 

Dawn Porter You know, as a first year law student, you know, if you take con Law one, most of the the seminal cases that you are taught really come from that era, and that’s con and crim law, right? So I went to Georgetown. I was a first year in 1990, and in that year my con law teacher and crim law teacher decided to teach together. So they did a joint class where we essentially were, you know, mapping out the decisions of the court. And when you’re when you teach it that way, you see how some of the most important decisions or some of the most publicly familiar decisions come from that. Court. So the exclusionary rule cases, Brown v board, like you just get all of these cases that literally form the popular conception of what the court is. And so that conception is synonymous with the idea that it is a liberal court and that this is the foundation in the body of the liberal, you know, liberal left. And so I wanted to start with what people were familiar with and then contextualize and move forward, because I think people have this misunderstanding that the Warren Court was this insanely liberal court with people who all came there with an agenda. And then somehow mysteriously in 2021, 2022, that we don’t know how this happened, but all of a sudden it’s the polar opposite. And it’s just, you know, as some other commentators have said, well, these are two halves of the same coin. This is the conservative court versus that was the liberal court. And in order to understand why that is deeply not true, I think you need to see the evolution of the court unfold. And so I am really grateful in this time and I mean this really sincerely, that Showtime gave us the real estate in order to show that evolution. I mean, we clearly could have made this 6 hours. There’s fascinating.

 

Melissa Murray There’s nothing wrong with that.

 

Leah Litman Yes, I definitely would have watched at least 6 hours. It’s really incredible. And I also want to show it, or at least parts of it, to my constitutional law students or at least recommend it to them because there’s just so much rich material in there about what makes a court and all of the kind of historical contingencies and circumstances that led us to the court we have today. But just going back to something that you were already talking about, which is the court’s evolution from the Warren Court to the conservative super majority, you know, that we know today and that, you know, began to take shape after the Warren Court. Like, in your view, what is the event or kind of an event that really starts the court’s lurch to the right?

 

Dawn Porter You can’t talk about the court’s rightward shift without talking about the role of Richard Nixon. And then from there, you really have to think, what if Bobby Kennedy had lived, if Kennedy had lived or if Johnson had had not stepped back, what would have happened? And so, you know, this idea from the very beginning, this idea that the court and politics are separate is a fiction, because, of course, the president has the power to actually identify these justices. And so who is the president going to pick? You’re not going to pick your political enemy or a person who is is ideologically opposed to your agenda. You’re going to pick somebody who you hope and think will serve the agenda that you have put forward, whether that agenda is publicly articulated or only privately held. And that’s really, really important as well.

 

Leah Litman So the pairing or duality you just mentioned in that answer, you know, Richard Nixon and then Johnson, who took a step back to me when I watched kind of the episodes that covered that trajectory. To me, it felt like such this horrifying precursor to the modern alignment of politics. You had Richard Nixon actively campaigning against the court, talking about the court and the law in language that voters understood and telegraphed to them why the court was important to them, what he was going to do with the court and the law. And then by the end of his term, Lyndon Johnson was like, Well, maybe I’ll just try to elevate my friend. I don’t actually know if I can make this work. And he didn’t have the ability to fill the slots that had come up. And it just I watched it and I was like, Oh my gosh, this has happened before.

 

Dawn Porter We have been here before. And, you know, Johnson, the president who appoints Thurgood Marshall and is not often given credit for so many of the other things. Now, the way that he appoints Marshall, we don’t get into he elbows out the justice who is to take that seat. But, you know, do, do, do. Leaving that aside, he does appoint Marshall. He does also put in place the steps to get Marshall to the court. I think people really need to remember that it was far from assured that a president would be able to nominate and appoint a black man. And so he makes Thurgood Marshall solicitor general and he says whatever he’s going to be, he’s going to be qualified. So Marshall already had a string of impressive victories, but now he’s the lawyer for the United States. He’s not the lawyer for the NAACP Legal Defense Fund. And then it makes it really hard when people still care about qualifications. He takes that argument off the table. And so even there, you know, we still have a long time to get Marshall actually seated. But Johnson’s a really wily politician. And, you know, I think he’s like kind of the argument against cancel culture, because you can not like a lot of what Johnson did, but you can also say in many, many ways he served some of the more progressive ideology.

 

Melissa Murray That’s such an insightful discussion of, you know, the sort of master of the Senate. Johnson as president. And. And so striking because he also nominated Constance Baker Motley to be the first black woman to the federal bench, but was unable to sort of set up for her the kinds of steps that he was able to set up for Thurgood Marshall, like he planned for her to go to the Second Circuit. That did not happen. And she sort of was sort of stranded at the district court level when he had intended for her to be the first black woman on the Supreme Court.

 

Dawn Porter We couldn’t do both black and girl at the same time.

 

Melissa Murray No, very hard.

 

Dawn Porter So.

 

Melissa Murray Always always always hard the race and gender. Correct.

 

Dawn Porter You know, good try. But we need to get black and boy.

 

Leah Litman It’s the two clips I had wanted to play were one the call between President Johnson and Thurgood Marshall asking him to be the solicitor general of the United States.

 

Clip Judge, how are you? I want you to be my solicitor general. I want you to do it for two or three reasons why I want the top lawyer in the United States represent me for Supreme Court.  to be a Negro and I’d be a damn good lawyer That’s done it before.

 

Leah Litman And then to the discussion by Johnson about his plan to put Thurgood Marshall on the Supreme Court.

 

Clip I want Thurgood Marshall to be sought after a semester for a year to the first vacancy, I had 32 cases, my Supreme Court at 129. And now he’ll have to throw more of the variety into the system of government at the end of the year. And to no one can say here that he’s not one of the best qualified man that has ever bought it.

 

Leah Litman Those were just really amazing clips.

 

Dawn Porter I have just also finished a documentary about Lady Bird Johnson, and Lady Bird recorded 123 hours of audiotapes while she was in the presidency. And she you know, she really was a very close confidante of Johnson. But the conversations that the the information and the understanding of the historical record that the two of them have given to us by having those recordings available for us to discuss and contextualize today is really just an unmatched gift to the historical record.

 

Melissa Murray [AD]

 

Kate Shaw Leah mentioned Johnson sort of saying like when he had an opportunity to make an appointment to the position of Chief justice, he just is going to elevate his friend. So this is the Abe Fortas saga, which we have talked about on the show before. You know, we’ve talked about Fortas ethics issues, which seem very quaint in retrospect. But when Johnson has the opportunity to make an appointment to nomination to the position of chief Justice, right, he does reach for his longtime friend and advisor, Abe Fortas. But I do think it’s not just because this is a longtime friend and trusted adviser. He, I think, very much wants Fortas to continue the Warren legacy. Right. And all of these things in the historical record land so differently today, even if there are episodes I was familiar with. So as I watched this unfold from the archival materials and the exposition by many of the experts that you talk to, I just felt like there were so many echoes of Mitch McConnell heart. So it was, you know, the Senate, you know, kept LBJ from putting Fortas in to continue the Warren legacy you know again for what seem now to be really quaint kind of ethics missteps, but also some maybe well-founded concerns about the separation of powers. And Fortas has active advising of Johnson from the Supreme Court while Johnson was in the Oval Office. I wondered whether, despite the very different kind of political moments, there is a through line between that successful effort to blockade Fortas from elevation. And ultimately, of course, he leaves the court and gives Nixon, who’s by then the president, another vacancy to fill. But through line between that moment and Mitch McConnell’s hardball, keeping President Barack Obama from filling the seat left vacant by the death of Justice Scalia.

 

Dawn Porter I think there is. And I think what’s really clear is whatever you think of forces, ethics issues, he retained his position, his paid legal legal work while he was on the court. I think historians agree it was really the closeness of Johnson and Fortas that was objectionable. And so Ford is kind of serves up this opportunity to have something that looks neutral, become the thing that that, you know, scuttles his his nomination. And then it’s not it’s not too far a step to say. It’s not just that Fortas and Johnson are close. It’s that they are ideologically aligned. And that’s exactly right. There was so much public opposition on the conservative side to the Warren Court’s decisions and whether or not that reflects accurately the mood of the country is a big question. But it’s certainly just like we are seeing today, was the very noisy opposition to Johnson. And there’s also, of course, then what what happened during Nixon’s time is you have the rapprochement between Catholics and the evangelical Christians who unite to further the the court’s rightward shift. So but we get ahead of ourselves. But I do think that that that those are you know, and that was really what part of what I was trying to do. And I’m so glad you picked up on it. And I realize I’m speaking to, you know, not just the choir, but the the most observant and education, educated and informed choir. But this idea that the people are really playing this game of chess with the appointment process, the elevation to chief justice and that it’s based on ideological and political grounds is really, really important for us to understand. And the public needs to understand that when these names are submitted, who are these people? What is the president? What does the party think that they’re going to achieve? And what does that say about the motivation for their for their nominations? And I think if we ask that question about the three justices that have most recently been confirmed, we can take any criticism of their appointments, their selection. We can kind of take it out of child gossip and take it to a much more serious level, which is what are you trying to preserve and what are you trying to put in place for the next several decades? What kind of constitutional democracy are you putting in place?

 

Melissa Murray Nixon actually has three bites at the apple to appoint justices that are going to begin the process of dismantling the Warren Court’s work. So he appoints Warren Burger to replace Earl Warren, which you discuss. He also appoints Harry Blackmun, Lewis Powell and William Rehnquist. And not all of these appointments turn out to be as explicitly conservative as Nixon would have like. But it does begin the court’s march to the right, which then brings us to the Reagan era, where there is yet another lurch and things kind of go awry a bit in the Reagan era. Reagan has. A few appointments that go according to plan. He is able to appoint the first woman, Justice Sandra Day O’Connor. He elevates William Rehnquist to chief justice and also appoints Antonin Scalia, a stealth warrior. As you note in the documentary that sort of passes by the Senate without a lot of critique. But in 1987, he doesn’t get a pass when he tries to nominate former Yale law professor, now a judge, Robert Bork, to the court. And the Bork confirmation process really becomes a flashpoint for the politicization of the confirmation process. So Bork, because of his views about Roe and Griswold and the right to privacy, is viewed to be out of step with the American public. His nomination fails, but it really sparks this kind of grievance politics among those on the right. And so we wanted to play a little snippet from the film that features some archival footage of a young senator from Kentucky who had a lot to say about the failed Bork nomination and what it would mean for future nominations.

 

Clip My prediction, Madam President, the president going to send up another nominee, philosophical soulmate, to Judge Bork, if probably not so well published somebody maybe ten or 15 years younger and we may waltz around. This may fall one more time. We may not be able to pick the nominee, but we can sure shoot him down. We can sure shoot them down.

 

Melissa Murray That is actually really chilling when you think about what happens later, years later with the Garland nomination. And Kate alluded to that earlier when you were reviewing this archival footage. Did that clip of McConnell give you pause, if we can? Is the fact that Mitch McConnell is making that statement in 1997, almost and almost 30 years later refuses to provide Merrick Garland with a Senate hearing, irrefutable proof that the court is very much understood as a kind of pawn in this political gamesmanship on both sides.

 

Dawn Porter I mean, pause would be an understatement. I would I would say like fell out of my chair would be more accurate. And, you know, McConnell is one of the most deft politicians and has never been made a secret of the fact that he is a political hole through and through a political animal. But the naked threat that he essentially voices in the wake of the Bork hearing was really chilling. I mean, when he says we can sure shoot him down, he is telling you how he is going to behave for the next several decades, not the next confirmation forever. He is forever going to aim at justices from the opposing party. And that’s exactly what he ends up doing. I think one of the things that that documentaries can do, that podcasts can do is you don’t have to believe me. You can see for yourself and judge for yourself about what the motivations are. But yeah, that was actually I’m in a lot of films and that was actually one of the more chilling things I had ever seen, because that to me is not a person who said, for the good of the nation, I am going to scrutinize nominations. That is a person who said, I will oppose you with every fiber of my body in retribution for what had become a verb. Right. We bought them. So he wasn’t kidding. You know, like, do not get on Mitch McConnell’s backside, because if you shoot at the at the king, you must kill him.

 

Leah Litman What you were just saying about, you know, you can believe me, but it’s another, you know, to hear it from someone else. That’s basically the rationale I have given myself for why we play a lot of Sam Alito clips on this podcast. But speaking of confirmations as spectacles, you know, Robert Bork’s failed nomination is not the only contentious confirmation fight that you chronicle in the film. And in fact, I think that’s a grave mischaracterization and misperception, because, of course, you also cover the confirmation process of Thurgood Marshall, the first black justice to sit on the Supreme Court. And no surprise, Southern senators were deeply opposed to Marshall’s nomination. And just to give our listeners a flavor of the discussion. Here’s some footage from the film of a CBS Mike Wallace interview with Marshall, in which they discuss Marshall’s successful efforts to dismantle Jim Crow segregation.

 

Clip Do you feel any sympathy for any understanding of the Southerner? The white Southerner who was forced suddenly to change not only his attitude, but his whole way of life. I, I have as much sympathy as I could have for anybody I recognize. It is a tough problem. It’s a problem that at times would seem to the average Southern white man has been insoluble. I recognize it and I, for one, would do everything in my power. And so would the NAACP to work it out in a way that would be satisfactory to both sides concerned.

 

Leah Litman Was it crazy to listen to that interview as well? Like, is Marshall’s appointment, whether directly or indirectly, one of the events that spawns this intense conservative interest in capturing the core? Like did his appointment embody, you know, the perceived, you know, mistakenly perceived in some ways liberalism of the Warren Court.

 

Dawn Porter When you think about Marshall’s legal career, his stunning strategy and then litigation strategy, but also his political strategy, what you see is Marshall on a steady attack through the South, dismantling segregation. So Marshall is responsible directly for almost humiliating many of the people who now sit on the body that is charged with passing his nomination. And so they are not about to let Marshall, who they really felt like was public enemy number one. They really, really believed that Marshall did not have the good of the country at heart, but he was single mindedly focused on dismantling the way of life of white Southerners. And so it was that personal animosity that they brought to those hearings and and attempted to to scuttle his his nomination.

 

Melissa Murray It’s also bonkers, though, to hear Mike Wallace recasting segregation in these benign terms like this is just a bunch of good old boys.

 

Dawn Porter Can you just understand how how they feel?

 

Melissa Murray It’s hard to be totally racist, you know. Don’t you have any sympathy for them?

 

Dawn Porter Right? Like, can’t you just give them a little more time and, you know, to see Marshall, to see his restraint in his answer? That was really instructive to me, because I do not think of Thurgood Marshall as a restrained person. And so in that that moment, in that clip, I’m thinking Mike Wallace is asking him completely bonkers questions. And he instead of saying that’s bananas, that you think that because he could not say that at that time, he is thinking of a way to actually answer the question without offending the interviewer. But I think that’s also important for people to see is when people say nothing has changed, to say. At the time, Marshall had to figure out how to carefully crafted answer to a journalist, asking him if he couldn’t understand why racist people were going to be racist.

 

Melissa Murray Well, this reminded me so much of Ketanji Brown-Jackson like literally biting her.

 

Leah Litman The Ted Cruz moment.

 

Melissa Murray The Ted Cruz moment where she was like, do I risk it all? No. I do like the restraint. I mean, like Thurgood walked so Ketanji could run.

 

Dawn Porter And Sonia Sotomayor, the same thing, right, With Lindsey Graham?

 

Melissa Murray Yeah.

 

Dawn Porter You know where he says, My problem is like these articles that you’re writing, I mean, just chastising her in the most just sexist way. And yet, you know, we see that these these three individuals and so many more are are thinking of the long game and are thinking of the importance that they actually get on to that court. Imagine if Sonia Sotomayor was not on that court. Now, imagine if Marshall was not on the court. Imagine if Andrew Brown Jackson and her now infamous dissents was not a member of the court. Where would we be?

 

Kate Shaw But just maybe to play a cop because there’s so much wonderful material about the Marshall confirmation process, which I think a lot of modern confirmation discourse and discourse about the confirmation battles and their history like has really overlooked. And so I’m glad you give the topic the attention that it deserves. And I’m sure there was tons that you couldn’t include. We thought we would just play a couple of clips here.

 

Clip Southern segregationists who realized that they’ve lost the battle of Brown versus Board of Education and who were eager to score points with the folks at home. They take Marshall to task about the Warren Court criminal procedure decisions. And some of the segregationist senators pelted him with these nickel and dime questions that were not. Designed to understand his jurisprudence, but instead were designed to embarrass and to suggest that a black person was unworthy of the dignity of being on the Supreme Court of the United States. Then they asked him things like. Well, do you have anything against white people? They are creating the idea of confirmation hearings as spectacle. You get these pretty girls in the picture more. I want to be properly framed. Here are delightfully frame. All right, ladies. Senator, do you think that Judge Marshall is giving people enough answers so that you can get what Senator Ervin keeps referring to, as well. As not giving full answers? He contends that he shouldn’t be required to comment in response to certain questions or a line of questioning that has been followed. And I asked some of those questions the first day I interrogate them. He contends that he shouldn’t be required to answer those questions. Could you confirm it? Well, I have to make that decision, would I not? It was a challenging time for my dad, but he made it through with 69 votes to confirm him.

 

Kate Shaw Okay. So perhaps ironically, it is Marshall’s retirement in 1991 that really does cement the court’s slide to the right. So let’s play a clip now from the film that features footage from Marshall’s retirement interview.

 

Clip Do you think President Bush has any kind of an obligation to name a minority candidate for your job? I don’t think that that should be applied. And I don’t think it should be used as an excuse. One way or the other for what they’re doing wrong. Mark McGwire, would you tell me for picking the wrong Negro and said, I’m picking him because he’s a Negro. I’m opposed to that.

 

Kate Shaw Marshall’s retirement ushered in a new justice, Clarence Thomas, and a new era for the court and a far more conservative era. So, Dawn, how does Thomas’s introduction to the court shift the ideological balance in 1991?

 

Dawn Porter There are so many conversations happening about race and jurisprudence, and they’re intertwined. And so Thomas’s nomination, I think of it today is quite a cynical nomination. You know, Bush senior nominates Thomas and takes him on this tour of the Senate where he’s yucking it up.

 

Melissa Murray Here’s my own copy of the Constitution.

 

Dawn Porter My own copy of the Constitution. I mean, and so it starts this conversation that’s really interesting among black people. Right. Because and until then, we’re kind of like, yeah, go black person. You know, there’s there’s I don’t know, there’s some comedian who is like, who are you rooting for? The black ones?

 

Melissa Murray Issa Rae, I’m rooting for everybody black, but not this guy.

 

Dawn Porter I’m rooting for everybody black. Exactly. And then Thomas comes in without a strong judicial record, without a strong career and he’s nominee. It’s the most cynical of nominations. And it is such a slap in the face to anyone who cares about Marshall’s legacy. And that does not go unnoticed. However, it does get rewarded. And, you know, we think of like those hearings and completely unprecedented. I mean, people thought Bork hearings were contentious. I mean, this was unlike anything. Ruth Marcus discusses this beautifully and how the Senate and the Constitution of the Senate, the racial composition of the Senate and gender composition of the Senate. They were not prepared to deal with allegations between black people and to deal with allegations of a sexual nature against a black man. And so they really wholly punched. I mean, those allegations from Professor Hill were well known to that Senate committee well before that confirmation hearing. And the fact that they have to adjourn and decide what to do in crisis and they just mishandled the whole thing. So, Thomas, I have some friends who are working on some Thomas films and they have lots of opinions about this, which you are going to really love. Thomas had had before his nomination embarked on this ever public conservative. You know, he wanted he to become the conservative darling, and it works like a charm. So it’s cynical not only by George Bush nominating Thomas, it’s cynical in that Thomas knows what they will fall for. He just has to appear as the next great black conservative hope, and they will fall over themselves and they actually do it. I guess that the thing is that he also does deliver what they want. You could ask at what cost, but it doesn’t appear that he’s asking himself that question.

 

Melissa Murray Well, I think one of the most searing clips is one that we’ve all seen before. When then Judge now Justice Thomas responds to the allegations that he sexually harassed Anita Hill and he characterizes them as a high tech lynching. But the way you discuss it in the film is so interesting in that he’s leaning in to race as a means of anesthetizing these allegations, which I think under other circumstances would have been completely damning, like it would have forced him or Borked him in other circumstances. And it’s so interesting to listen to this language in the wake of his concurrence in the affirmative action cases. It’s also really interesting to think about how much he leaned into race and the epistemic authority of being a black man before an entirely all male, all white committee, knowing that they can’t respond when he talks about lynching and how he then carried that to the court and talked about race with his colleagues and lots of opinions that didn’t even involve race. But they could not parry back because they didn’t have the same kind of authority that he had as a black man. It lays the foundation, the Thomas nomination for the shift to the right, but that shift really becomes a lurch later when the court is completely transformed by George W Bush, the son of George H.W. Bush. And as you note in the documentary, George W Bush is kind of an accidental president. And the group that. Made him president because of its decision. And Bush v Gore is the court itself. And so you present the entire rollout to Bush versus Gore and any new view. Is this the key moment where the court becomes irredeemably enmeshed in politics and understood as a political actor?

 

Dawn Porter I do think that that’s that that’s a fair statement. I mean, until this point, the court has flirted with kind of directly embroiling itself in political decisions, but largely not not completely, but largely stepped back from that position. And in noting where I started the tripartite system of government in kind of staying in its lane, and when the court steps in to stop the count of the votes in Bush v Gore. And I mean, we have Ted Olson and we interviewed Ted Olson. I tried really hard to interview people across who have different political views. You know, I did not want this to be preaching to the choir. I really think I hope that most many people can see and can at least see the effort we made to reach out to people with conservative opinions. So we point out that John Roberts, Amy Coney Barrett and Brett Kavanaugh were all lawyers for now, you know, President Bush, who would be the man who would become President Bush? And Ted Olson says, you know, that was coincidence, that he only talked to Roberts because he’d written memos about, you know, some legal theories. It’s a hefty coincidence when three of those people are now sitting on a court of nine people. Just a little while later. And so if you before this point had thought, well, politics and the court are still separate, I don’t see how you can have that conclusion today when you know that three of the current sitting justices were on the legal team arguing for the conservative president, that would really put them pretty much the final nail in the conservative rightward lurch that the present courthouse. And I think, you know, you kind of have to see all of it come together in order to pull away the clutter and see what the marches. I do want to say, though, that this is the system that we have. You know, we’re not saying that any of this was illegal or was corrupt. It is the system that we have. And so I hope that the series is actually an argument for strengthening our system, for having if Congress behaves as it should. You know, maybe the filibuster doesn’t get blown up. Maybe we have supermajorities confirming these justices. So there are many, many places to point our attention to. But we have to understand what’s actually happening. We have to understand the problem if we’re going to understand the solution.

 

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Leah Litman So I think some of the incredible clips from the series are from this Bush versus Gore saga. And in one there is a clip of a young Coach Kavanaugh, who is not yet a father of daughters. I don’t think, talking to a reporter about the Florida lawsuit to stop the ballot count.

 

Clip I don’t think the justices care that it’s Bush versus Gore or if it were Gore versus Bush. What they care about is how to interpret the Constitution. What are the enduring values that are going to stand a generation from now?

 

Melissa Murray So that’s an amazing clip. A very fresh faced young Brett Kavanaugh. But here’s my absolute favorite clip, Don, and it is from Ted Olson, who you just referenced. I’m Ted Olson. If listeners don’t know, argued Bush versus Gore for George W Bush and later served as Bush’s solicitor general. So here he is weighing in on the lawyers who worked on the legal team.

 

Clip I don’t remember Brett Kavanaugh at all. I do remember John Roberts. I remember asking John Roberts for a little advice with respect to one of the arguments that I was making. I think he spent about an hour talking to me about it.

 

Melissa Murray This is absolutely Ted Olson’s Mariah Carey moment. He’s like, I have no fucking idea who Brett Kavanaugh is. Like, who is he? Like, this is the most hilariously shady part.

 

Leah Litman I loved it so much.

 

Melissa Murray So much SO much!

 

Leah Litman Because it’s like, Well, well, of course, we called this guy John Roberts.

 

Melissa Murray He’s a genius.

 

Leah Litman Who is basically the genius of the Supreme Court bar and the most renowned Supreme Court lawyer of his generation. And then I guess this guy, Brett, came along too.

 

Melissa Murray I don’t know him. I don’t know him.

 

Leah Litman And ended up talking to the cameras.

 

Kate Shaw And it follows the clip. Olson’s interview follows the clip. So we’ve just seen Kavanaugh holding himself out as a member of the team. And then it’s like, was he did he just grab a microphone with no actual authority to speak?

 

Leah Litman It’s the ultimate lax bro move.

 

Melissa Murray Yeah. So good. Like, did you mean for it to be that snarky? Because it was like, let’s get her to join the podcast.

 

Dawn Porter I didn’t. I actually didn’t. I really didn’t. I. This is 100% true. I mean, I have a lot of respect for for Ted Olson. I mean, he’s a really well-respected litigator. He argues that sort of like gay marriage cases. But besides that, you know, Ted Olson to me was always that brand of Republican who did actually try and comply with rules and was conservative, you know, small C like thinks there should be smaller government but was not a person who was you know, was not a Leonard Leo like was not a you know I will do anything was not a mitch McConnell.

 

Melissa Murray This was no shade about Ted. We just that about how you put the clip together. This was about you being snarky like, were you snarky?

 

Dawn Porter No, that was shade. That was shade so.

 

Leah Litman Love it.

 

Melissa Murray We thought so.

 

Dawn Porter I actually think that I think in in talking, you know, with Ted Olson, this is my personal opinion. I cannot prove this. This is just my witchy intuition. I think that he is really struggling with the current hyper politicized nature of the debate. I think that he thinks and I think he’s right, that it’s harming Republican causes. I think he thinks it’s harming democracy. He didn’t come out and say any of this, but he was trying really hard to say, you know, this is our system. And and I’ve done other things, too. And, you know, it’s kind of a little ol fair in love and war.

 

Kate Shaw In terms of other archival gold on the topic of Bush versus Gore, you note in the series that in the aftermath of the Supreme Court’s opinion in the case, the justices kind of had to face the music about their role in literally deciding the presidential election. And as you show in the series, Justices Thomas and Kennedy were basically summoned across the street to the House of Representatives to testify before a subcommittee of the Joint Committee on Appropriations. And the footage that you include has them being basically taken to task for Bush versus Gore. And this was so interesting to watch, in particular in light of Chief Justice Roberts refusal to testify before Congress about ethics reform when recently invited to do so. So was this also like a fall out of your seat moment when you found this archival material and, you know, what did you make of what lessons might lie in that episode for today?

 

Dawn Porter I mean, this really fell into the category of who knew, you know, who knew that the justices and this is usually a, you know, a pretty uneventful the justices have to appear before Congress in order to get their budget appropriation. So they trot over, you know, they walk across the street and they say nothing to see here and you should give us our budget. And we’re not taking any jets and we’re not taking any cruises. And no, they don’t say any of that because no one knew. And so no one. A new to ask them about that. But they do have to appear. And it’s usually, you know, pretty like pro forma kind of appearance, but not this year. And this year, you know, several Democratic congresspeople take the opportunity to point out that they are watching and they are concerned. And I think, too, though, that this is a moment to focus on those congresspeople, because they weren’t used to doing this either. They weren’t used to criticizing. And if you know anything about Congress and I lived in D.C. for ten years and I lived on the Hill, they don’t actually until this modern era and I’m talking about the last like eight years since Obama, they didn’t actually like to attack each other like this. They actually would pull back from that and realize that outside of the cameras, they had to work together to get anything done. And so I think what you see is some lecturing, but I don’t think you really see that much accountability. And so actually what happens is the justices take it upon themselves to do you know, I think it’s Ruth Marcus who says it’s like the quiet period. We’re not going to really upset people like this again for a while lest we lose the confidence of the public. Because guess what? You can lose the confidence of the public if you do things like literally create new rules for standing. I mean, can we just talk about like we have no case or controversy and that like that? I just I realize I just like said that other blue, but it is still the thing that, like I like day one of law school. You’re like actual case or controversy or you’re out of here. And the idea that that is the case, you know, that that case went forward, I still can’t believe it. I still feel like that’s like I made that up. Like, that’s.

 

Melissa Murray No, they made it up. Not you.

 

Dawn Porter I would fail my I would fail my exams if I if I wrote that that case should go forward. Anyway, I digress.

 

Melissa Murray So, Dawn, the whole series kind of ends with the appointment of Justice Ketanji Brown Jackson And I imagine you were already in post-production when all of the news around the major ethics scandals began to break. Like you didn’t mention some of the stuff that came out in November of 2020 to the reporting by Joe Becker and Jodi Kantor. But ProPublica, everything that’s come out about the private jet travel did not make it into this docu series. And again, Vinnie Malhotra, there’s got to be a sequel to cover this. I think we should call it the Suite Life of Sam and Clarence. And that would be amazing. I wanted to play a couple of clips that you do offer in the docu series about ethics. And to contextualize this for the listeners, this is Roy Wilkins of the NAACP discussing Richard Nixon’s nomination of Clement Haynsworth. So here he is.

 

Clip A judge of the United States Supreme Court occupying the highest post. And we have to give with no appeal possible from the decisions of that court or to be free of every taint of ethical misadventure.

 

Melissa Murray Let’s say this hits so different right now. Clement Haynsworth obviously did not succeed in his bid to be a Supreme Court justice, largely because he had all of these ethical issues. How do you reconcile this with what seems to be our current level of tolerance and condemnation of what seem to be really egregious ethical lapses?

 

Dawn Porter You know, I think that there is there there has evolved in particularly in the last two years, two or three years, this idea that it’s always been this way, that there’s nothing we can do. And this is not a big deal and this is just how it goes. And so, you know, I wanted to include particularly moments like that to say it has not always been this way. This is new. And if this is new, then we can stop it. We don’t have to keep going down this terrible path. We can actually respect precedent, We can respect procedure, We can have ethics. We can hold ourselves accountable. We can do all of those things for which we fly this flag. And that is part of the reason to show people this history and to show what has happened in the past. But there’s another reason. And the other reason is hopefully to give people some hope that it’s not all a terrible mess. There certainly were times when people have done the right thing, the ethical thing, that thing that we would be proud of. And so can we be that again. And really what that takes is personal will. It takes a personal decision from people in power to say, I am not just going to protect myself. I am actually going to protect this country. And just like climate change, the loss of public confidence is real. And if we go too far down this path, we are not going to get it back. It was one of our experts says there’s no plan B. There’s no other system that we have. We’ve got to address this one. You know, I did want to say one last thing about the timing. You know, I said Vinnie and I started talking about this three years ago. And a year into it, I said, we need more time. Like, just crazy stuff is happening. And I think we’re going to need more time. And so we got kind of two extensions. And then we literally were like, I was like, no more. We have to pencils downward. We’re done. We’re done. We’re done. And literally, like, we’re delivering and then all the Thomas stuff starts coming out. And so you can imagine how sad everyone around me was those few days, because I thought, how can we possibly how can we possibly. And then I thought, you know what? We’re not chasing the news with this serious. We are doing a longitudinal. You know, look, I reporters will chase that news and they will do a great job. And in a few years, we will have, you know, we’ll be able to do a look back and contextualize what this moment really means. But we couldn’t do that super quickly. And I hope we have a better story to tell in three years. I hope people are held accountable for their behavior and that this behavior isn’t allowed to continue. So, you know, stay tuned. Right.

 

Melissa Murray Dawn, thank you for this. Like all of your work, this docu series is so meticulously researched and beautifully filmed and presented. And we should note it features as commentators a number of Strict Scrutiny, super guests, including Amanda Hollis Brewski, commander Steve Vladeck, Michelle Adams, Ruth Marcus, Dahlia Lithwick, and so many more. It is truly, truly, truly must see TV, and we are so grateful to you for giving us a sneak peek of this fantastic work. And many, many congratulations, Dawn, on this amazing, amazing achievement in this fantastic film.

 

Dawn Porter Thank you. Thank you so much.

 

Melissa Murray Listeners, be sure to watch Dawn Porter’s excellent documentary series, Deadlocked: How America Shaped the Supreme Court. The first episode streams on Showtime and Paramount Plus this Friday, September 22nd.

 

Kate Shaw Before we take off. We know there’s a lot of news to catch up on. Crooked’s What A Day daily news podcast is here to help break down the most important stories you may have missed in only 20 minutes. Listen to new episodes of What A Day every Monday through Friday, wherever you get your podcasts. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman. Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Ashley Mizuho is our Associate producer. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Michael Martinez and Ari Schwartz. And Digital support from Amelia Montooth.