The foundation of America should be freedom; at least, that's what we are told, with our three-branched government set up in a way that, in theory, keeps everyone honest. Grade school civics classes call it “checks and balances.” However, we have long known that wealthy donors have heavily influenced our nation's presidents and members of Congress. And now we are discovering the ridiculous amounts of money and gifts that Supreme Court justices like Clarence Thomas have been taking over the years. What's a citizen to do? Dawn Porter explains how endangered our democracy is on a recent episode of "Salon Talks."
The Emmy Award-winning director is most known for acclaimed films such as "The Lady Bird Diaries," "37 Words," "The Me You Can’t See," executive produced by Oprah Winfrey and Prince Harry, "The Way I See It," "John Lewis: Good Trouble," "Gideon’s Army" and the multi-platform project "Un(re)solved," which investigated Civil Rights era cold cases. Her latest Showtime docuseries "Deadlocked: How America Shaped The Supreme Court" takes a deep dive into the history of the court.
In "Deadlocked," Porter slowly walks us through the dense history of the Supreme Court, from shining a light on landmark cases such as Roe v. Wade to highlighting the glorious journey of justices like Thurgood Marshall and Ruth Bader Ginsburg, explaining the messiness of Brett Kavanaugh, and the downfall of our democracy as we know it.
You can watch my "Salon Talks" episode with Dawn Porter here or read a Q&A of our conversation below to learn more about her thought-provoking new film, the history of the Supreme Court, Mitch McConnell's role in breaking the system and her upcoming documentary on Luther Vandross.
The following conversation has been lightly edited for length and clarity.
When you make films like "Good Trouble," "Rise Again" and now “Deadlocked,” and you do these deep historical dives, what kind of feedback do you get from people who buy into the idea of this precious, beautiful country? Because you tell hard truths.
I think people appreciate when they see how much work has gone into it, and one of the things that we try really hard to do — like with “Deadlocked,” there's 200 minutes of archival footage in the series, and that's on purpose, and that is because it's not what I think, it’s what happened. It's what people said. Mitch McConnell almost 30 years ago said, "You didn't confirm my guy. I'm never going to confirm your people." Then fast forward to Obama's pick for the Supreme Court and there's Mitch McConnell 260-plus days before the election and he refuses to seat Barack Obama's Supreme Court pick.
You need to see these things to believe them. I think people who come to a series with an open mind appreciate the care that we take to put together the facts. I always say, I don't care what you take from the work, but you should take something from it. In “Deadlocked” episode one, we spend a lot of time on Thurgood Marshall, and that's on purpose, because Marshall, I don't know that people remember what a spectacular genius lawyer he and the Black people that worked with him were.
How many Supreme Court cases did he win? What was his record?
Marshall argued before the Supreme Court 32 times as a private lawyer and won 29 of the cases.
Out of control.
Out of control. And so he literally, if you think about it, he and Constance Baker Motley and the other all-Black legal team, they literally were dismantling segregation in America through their advocacy. That was not an accident. That was their strategy.
I think Marshall was so good because he was a Baltimore guy. I could be wrong. I mean, you put that in the film, you're talking about where he was from and the law school and all of that stuff, but people need to know.
How did the whole project come together?
I used to work at ABC News and Vinnie Malhotra was a producer on “World News Tonight.” Vinnie called me up three years ago, and he had since moved on to Showtime and was the head of documentary, and he called me up and he was like, "Do you want to do something on the Supreme Court?" And I was like, "Yes." But we didn't have a plan, and that's actually something I love, is like, “Okay, wait, you have the opportunity to tell a story. What story do you want to tell?” So, we went through this process, and in doing the research, I thought we have a lot of good news outlets, people reporting Clarence Thomas took another $2 billion from some rich person, and those contemporary stories are important, but the history is important and we have to know where we came from to understand where we are.
This very radical conservative Supreme Court is not an accident. It did not happen overnight. It did not even happen when Trump came in. This has been a process of decades moving the court to where it is today, where it is so out of step with the American public.
Will we ever see a Justice like Thurgood Marshall again? Or even just someone who can lead with the law and what's right versus who they’re politically affiliated with?
You know, if you had asked me that a year ago, I would've said I don't know. But I will say one thing that has been spectacular about Ketanji Brown Jackson, the latest justice to be seated, is what she's doing on the court in the dissents that she's writing. The newest justice on the court, a Harvard Law, Harvard undergraduate, you can't restate her qualifications enough because literally people said she wasn't qualified. Editor of the Harvard Law Review, federal judge. Just saying.
She's like a cartoon.
She's like a cartoon. She's like, you couldn't craft this woman more perfectly, and still people are going to come for her.
What she's doing is so interesting because she's writing dissents and pointing out all the flaws in some of the recent decisions. That is important because someday this court will come back, hopefully, to the center at least, and she's really creating a roadmap for that future court, and that's important to do too.
I'm on the road a lot and I'm in front of a lot of young people, and every time I go to these high schools or I'm talking to people in their first two years of college and the conversation around the courts comes up, it's almost like a joke. No one takes it serious. We only hear about Clarence Thomas and the money he's taking and how corrupt and how a person like him clearly doesn't take the job seriously, a person like Donald Trump didn't take the job seriously, and they're not buying into the system. What should I be telling them?
That's exactly why I made this series, and Showtime, to their credit, gave us four hours to tell this history. The reason we started in episode one with Marshall and the Warren Court is because of all the great things that that court did. Before that Warren Court, the Supreme Court really mostly dealt with economic issues, and one economic issue they dealt with a lot was protecting the rights of slaveholders to control their slaves and to have economic benefit from the labor of enslaved people.
In the Warren Court, you see the court for the first time saying, "Wait a minute, the Bill of Rights applies to people, and that's our job." You have this time where Thurgood Marshall and Earl Warren together, Warren's on the court, Marshall's arguing before the court, and together you have this remarkable period where we get some of the most important rights that Americans, all those flag-waving people, it's because of those decisions. You have the right to an attorney, that's Gideon v. Wainwright in the Marshall Court. You get your Miranda rights read when you're arrested, hopefully, if they don't tase you first. That's Miranda v. Arizona. Brown v. Board of Education, my grandmother used to talk about time, she would say, "Well, before the Supreme Court decision," like there was only one, because for her there was one. It was Brown v. Board.
This is also why I wanted to tell this story, is I could have made this whole story about race and the court, because race has just, it keeps showing up in so many decisions. But there was a time when particularly Black people, they were like, "Let's just get to the Supremes," and that was because Marshall would win, but that's also because the court would hear these arguments and say, "This is what we do. We protect the rights of the least powerful." That is the history and that's what I would tell young people, is it hasn't always been like this and it's going to be up to you to make sure that it comes back to what it should be; protecting people who are not powerful, who are not rich.
We know the perception of the court. Now in an ideal democracy, what should happen when a justice takes gifts and gives favors and is unethical?
It's not even like an ideal democracy. In our democracy, which is far from ideal, we need to hold the justices accountable. Alabama has been trying to redistrict to get rid of the Black vote, essentially. To not give Black people, who are 27% of Alabama, a district that has Black representation. Once upon a time when that went up to the Supreme Court, they would say, "Alabama can do what it wants." And we're seeing the court say, "Oh, nope, Alabama, you can't do that." So, we're seeing public pressure and public opinion. I think that that is influencing the court to actually say, "Maybe we better moderate a little bit."
What should happen when we find justices where a wealthy donor owns their mother's house, or pays for the tuition of their nephew, or flies them on private jets to multimillion-dollar exclusive vacations, or flies them on private jets to an ideological conservative "How Do We Overturn a Hundred Years of Supreme Court Precedent?" meeting and he has gone for the last six years to that same convening, what should we do to that justice? We should say, "You have violated your oath and you are compromised, and we would urge you to step down and seek retirement." That's what we should say. What are we going to say? I think we're seeing a lot of pressure to at least, at least adopt a code of ethics. The United States Supreme Court, the most powerful court in the world, has no code of ethics.
If you are an administrative law judge in Temecula, you have a code of ethics, and yet these Justices do not, and it's gone far beyond, "We will regulate ourselves. Trust us." You have shown that you are not trustworthy. You're not trustworthy. Congress should step in, the president should step in and say, "We demand that you at least abide by the ethics code that every other judge in this country has to comply with."
What do you think of term limits?
I actually support term limits. I think that there certainly could be a process where you have your terms and then you go back to the higher federal courts. You don't have to be fired. But you could do it in a way that would allow each new presidential administration to have the opportunity should these openings arise. I think it keeps the court relevant, I think it helps isolate the court from ideas that it is political, as political as it has felt in recent years. I think that there are constitutional issues with term limits, and so we're not likely to see them, but we certainly, I think we need to do something really important. This is not a joke. There's no plan B for this country and for the rights that we have, and I would like to look a high schooler in the eye and say, "You can believe in this court. This court has democracy at its heart."
I love RBG.
Oh, you've got to go there.
I mean, such an amazing person and amazing figure and just important to our country in so many different ways, but she should have retired. But no one thought this guy was going to win. No one thought that the White House would turn into a bigger circus than the Reagan years.
So, RBG did not retire when Obama could have put somebody in, but when you think about it, Obama should have been able to put Merrick Garland in, so I think what is being revealed is the fragility of our system, and that a lot of Supreme Court practice is actually what we think of as norms. What people normally do.
When you have a Donald Trump, when you have a Mitch McConnell, they're not doing what has normally been done, and so to your earlier question, that is the argument for regulation. Because if people are not going to follow what has been done for 200 years, you let the sitting President nominate and confirm a Supreme Court Justice when they're in office, then it's time to say, "Well, maybe we need some actual rules."
You've been teaching me since I discovered your work, and I wonder, after so many hours of archival footage, so much research, all of the effort put into this, has your perspective on anything flipped?
Yes. There's two things that have happened. One is, I'm a lawyer, I went to Georgetown Law School and I used to live on East Capitol Street, and I would walk to school. When I was walking to school, I had to walk by the Supreme Court and I would look up and I would see that beautiful marble building and it kind of takes your breath away. I would think about what my grandmother said, I would think, "Thurgood Marshall was here," and it would just make you stand up straight, right?
I took pride and I was proud that I was in law school. I was proud that I had the opportunity to be in law school, I was proud that I felt like I was following in some footsteps. Then over time, like a lot of people, I have just become so saddened and so cynical. Actually, what doing this it made me realize I should be proud and I can't just say, "Forget you, Supreme Court." I actually have to be part of trying to make it better, make it what it should be.
Because what Marshall did is still, I mean it's done. He did it.
He did it. And we own that, and it is as much a part of our history as any other accomplishment. So, actually what making the series did was kind of reinvigorate my pride in what could be. That's the first thing.
But the second thing is the response to the series has been really great. I was like, "Nobody's going to watch this." The way that documentary has gone and what people are buying, and there's not always an appetite for things that begin in history, and so we were worried. But I was like, "This is what it needs to be," but also as a filmmaker, I was like, "This is what I want it to be, and so I'm just going to do what I want." Kind of saying like this series is meant to accompany all the reporters who are out there sometimes screaming into the wind saying, "Pay attention." So, what else changed is I have been really heartened that so many people are like, "This really helps me understand." And then, we need to take back our flag. This flag is for me. It's kind of strengthened my resolve.