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The Guardian - US
The Guardian - US
David Smith in Washington

‘You want to think America is better’: can the supreme court be saved?

‘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’ … Deadlocked
‘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’ … Deadlocked Photograph: Courtesy of Showtime

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?

Ronald Reagan farewell photo op with Clarence Thomas
Ronald Reagan with Clarence Thomas. Photograph: Courtesy of SHOWTIME

“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.

Amy Coney Barrett
Amy Coney Barrett. Photograph: Courtesy of SHOWTIME

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?”

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