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.
