PBS's "The Supreme Court": A Conventional View of the Cathedral

By ETHAN LEIB

Tuesday, Feb. 06, 2007

Airing tomorrow on PBS is the second of two two-hour segments of the documentary The Supreme Court. Where are Ken Burns and Martin Scorsese when you need them? Like jazz, baseball, the Civil War, and even, perhaps, Bob Dylan, the United States Supreme Court is an institution of dramatic importance to our lives as Americans. But The Supreme Court, unlike the documentaries made about those other subjects, is not a cinematic experience.

Since cameras have never been allowed inside the Supreme Court, the film's sources are limited. Yet it fails to use even a fraction of the wonderful media resources recently made available through the Oyez Project - or to experiment with the exciting new approaches available to today's documentary filmmakers. There is a delightful companion book by Jeffrey Rosen and, laudably, an extensive website full of games, classroom interactives, timelines, and a fun fact sheet, but the series itself fails to show the same diverse, new-media approach.

Instead, PBS's The Supreme Court simply offers the usual talking heads (far too many of them saying essentially the same thing) and cheesy reenactments. It also presents an ultimately optimistic, redemptive view of a Court that deservedly maintained its prestige in the face of some seriously bad decisions. One might have hoped for something a bit more controversial in these controversial legal times.

Granted, some of the law professor talking heads are extremely engaging: Lucas Powe, Jr., of UT-Austin, is a fabulous storyteller; Michael Klarman of UVa is insightful and smart; Howard Gillman of USC's law school, political science department, and history department has good screen presence. In addition, William Forbath (UT-Austin), G. Edward White (UVa), Ernst Young (UT-Austin), Larry Kramer (Stanford), and Akhil Amar (Yale) -- a columnist for this site -- all appear as well, mostly to very good effect.

Watching some of the talking heads read opinions from old copies of the United States Reporters is, however, downright absurd.

Highlights include key interviews with current Chief Justice John G. Roberts, Jr. and Retired Associate Justice Sandra Day O'Connor.

And there is also some riveting historical footage that manages to be cinematic -- such as Chief Justice Warren's swearing in of President Nixon (juxtaposed by the filmmakers with bits of Nixon on the stump criticizing the Warren Court and focusing his campaign on dismantling its decisions); and the press conference in which President Reagan announces Chief Justice Burger's resignation, then-Associate Justice Rehnquist's elevation to the job of Chief Justice, and the nomination of new Associate Justice Antonin Scalia. These are pregnant moments and are good theater.

Yet, more generally, the narrative is flat, with the feel of a rushed four-unit constitutional law course. The series is neither comprehensive, exhaustive, particularly creative, nor synthetic. Nor does it function as an effective "Greatest Hits" collection of the Court's decisions.

The First Hour: An Account of Chief Justice John Marshall's Tenure on the Court

The first hour is largely devoted to Chief Justice John Marshall, his conviviality, his cunning, his genius, and his ongoing imprint on the federal judiciary. A few silly dramatizations aside, one cannot help but get caught up in the fascinating story of the clash of Federalists and Antifederalists and the clash of the Executive and Judicial Branches in Marbury v. Madison. This illuminating episode is the genesis of so much that is central to our current understanding of the Supreme Court: judicial review, judicial supremacy, and the judiciary's power, activism, prestige, and strategic interaction with the Executive and with Congress.

During this segment, Chief Justice Roberts regales us with accounts of Marshall's purchases of vast quantities of wine for his colleagues, and insists that Marshall was principally after a non-partisan judiciary. This is a weird take-home lesson from Marbury - and a microcosm of the entire series: At its best, the series furnishes us with intimate portraitures of key Court personalities. At its worst, it is, like Roberts himself, too wide-eyed, earnest, and optimistic about the work of the Court in promoting the rule of law.

The first hour also covers Fletcher v. Peck, holding that contract rights cannot be impaired retroactively; and McCulloch v. Maryland, holding the national bank constitutional, and Maryland's attempt to tax that bank unconstitutional. Marshall is rightly the star of the show: He brings the court together to, for the most part, issue unanimous decisions (in sharp contrast to the prevailing British practice of each judge announcing his own opinion); he issues opinions specifically targeted to stimulate commerce and respect private property; and he reinforces federal over state power.

The segment on Marshall's approach to a set of cases involving Native Americans is far too short and rushed - given that our current regime of Indian law is so substantially indebted to these early cases. Yet it does, at least, illuminate how the Court can be at the mercy of the Executive -- such as when, legend has it, Andrew Jackson challenges Marshall to try to make effective his Indian jurisprudence. (More generally, Jackson's presidency is properly seen as a turning point, one that revives substantial states' rights, the very core of the Jeffersonian agenda Marshall had been so successful in undermining during his tenure as Chief.)

The first hour ends on slavery - and the Supreme Court's ineptness at dealing with it. It notes that new Chief Justice Roger Taney did for the second time in Dred Scott, what Marshall, his predecessor, had done for the first time in Marbury: strike down as unconstitutional a congressional act. Even this series - in which the Court too often comes out smelling like a rose - admits the stench of Dred Scott, and the Court's complicity in our nation's original sin.

The Second Hour: Cramming Too Much In

The second hour covers far too much territory. The Civil War is given but a few minutes - and the program primarily focuses on its effect on a 19-year-old Oliver Wendell Holmes, Jr. From there, the briefest summary of the Reconstruction and the Civil Rights Act of 1875 follow, as well as some biography of John Marshall Harlan, the Court's first great dissenter, whose dissent in the 1883 Civil Rights Cases (striking down the 1875 Act) is certainly within the canon of great opinions.

The documentary shows how Harlan - despite his background as a slaveholder and white supremacist --understands that Dred Scott was a radical misstep that needed to be undone. (He apparently has terrible writer's block - until his wife gives him Taney's inkstand.) While the segment on Harlan is interesting, it suggests too facilely that the Court and its heroic members were the primary actors in deciding the fate of the Reconstruction.

The next episode focuses on Justice Stephen Field, a Lincoln appointee portrayed as a California entrepreneur, a man of adventure, strong opinions, and an enthusiasm for the free market and economic liberties. Through the portrait of Field, the film approaches the clash between social classes. The substantial wealth generation in the country after Reconstruction at first seems to be reparative, but it quickly creates new ideological cleavages about redistributive politics. Social Darwinism and socialism are in the air - with labor strikes on the ground. Field's general pro-business agenda leads to Lochner v. New York -- the notorious case striking down New York State's law limiting the number of hours a baker could work. As the documentary shows, the Court constitutionalized Field's hostility to minimum wage and maximum hour laws, on the basis that one has an inviolable right to contract out one's own labor on whatever terms one chooses.

The discussion of Lochner naturally leads back to Oliver Wendell Holmes, Jr. - a dissenter in the case, who did not agree that any strong conception of economic liberty is a fixed feature of the United States Constitution. But the film highlights not only Lochner, in which history vindicated Holmes, but Buck v. Bell, in which it has condemned him. There, Holmes wrote a decision upholding a state's compulsory sterilization of an allegedly feeble-minded woman, on the ground that "[t]hree generations of imbeciles are enough."

Still, the film doesn't let us see Holmes as a eugenics sympathist: It is rather his enthusiasm for majoritarian democracy and the democratic process, the film suggests, that produces this aberrant result.

In a very short segment on the New Deal and the Court's struggle to make sense of it and peace with it, the film helpfully explores how FDR's centralization of the economy and assertion of strong federal powers might be viewed with great suspicion in the age of Hitler, Mussolini, and Stalin. But this meditation and montage surrenders almost as quickly as the Court does - underlining the general flaw of this segment, in attempting to cram two major constitutional moments (Reconstruction and the New Deal) into a single hour.

The Third Hour: The Warren Court - or Is It the Black Court?

The third hour focuses at first on the contrast between the First Amendment approaches of Hugo Black, a former Ku Klux Klan member, and Felix Frankfurter, a former Harvard professor. A contrast is made between Frankfurter's general policy of "judicial restraint" and deference to political majorities and Black's literalism and textualism (said to derive from his approach to Biblical interpretation).

Unfortunately, we are quickly rushed through McCarthyism, with little attempt to explore the Court's war jurisprudence, very active in these decades and very relevant today.

The documentary rightly focuses at length on Brown v. Board of Education. But again, it provides little, if any, complexity or depth. Brown could have provided a wonderful opportunity to display the limitations of constitutional interpretation at the Supreme Court, to show the Court in its inefficacy in bringing about social change, to show its reactive posture to social movements in society, and to unveil its responsiveness to the median voter in the country. These lenses are all refracted onto the story of Brown in some way, to be sure, but far too superficially to give the viewer a real sense of the complex place of the Supreme Court in our system of constitutional governance.

In this hour, the program also covers some of the core cases of the Criminal Procedure syllabus: Gideon v. Wainwright, which created a meaningful right to counsel, and Miranda v. Arizona, which created a meaningful right to remain silent during custodial interrogation. Although we conventionally call these "Warren Court" decisions, we are encouraged by the filmmakers to think of them as Black Court opinions, driven by Hugo Black and his vision of the Court.

Black's fellow crusader for progressivism, Justice William Douglas, is also portrayed as instrumental in creating our nation of liberties. But Black himself gets off the train in Griswold v. Connecticut, the case that discovered a right to privacy in the Constitution. The documentary shows how Black's textualism placed limits on how progressive he could be.

The Fourth Hour: The "Rehnquist Revolution"

The final hour of the series - which opens with scenes of mass disorder and chaos - is teed-up as the backlash against all our newfound liberties. That backlash is Richard Nixon's counterrevolution.

Nixon gets four appointments to make good on his campaign promise to America to roll back on Warren Court liberties - and one of them is the late Chief Justice William Hubbs Rehnquist. We are introduced to him as a young man with an interesting fashion sensibility (he liked pink shirts), and an unassuming self-confidence that bore little trace of self-importance. These are helpful windows onto a man many have caricatured otherwise. Rehnquist's initial series of dissents earn him the moniker, "The Lone Ranger." Yet slowly, his opinions command a set of majorities that alter the landscape of constitutional law.

Along the way, the documentary covers the basics of the abortion controversy, the Rehnquist Court's effort to roll back on Congressional power, and Bush v. Gore. The moral of the Bush v. Gore story seems to be that the Supreme Court's prestige cannot be tarnished, irrespective of how badly it may do its job in any one case. But the filmmakers do not spend much time developing this important lesson; it is too controversial a thesis for this film.

The film also offers only a few, rather tepid lessons about Rehnquist's mark on the Court: He revived a strong states' rights ethos and asserted a strong conception of the Court's supremacy. Was this truly revolutionary, as the segment's title suggests? The filmmakers need to do more to prove their points. After all, states' rights are a Jeffersonian legacy - and a strong Court is John Marshall's legacy, as the series itself acknowledges.

Why Jeffrey Rosen's Companion Book Succeeds Better than the Film Itself

Jeffrey Rosen's companion book succeeds just where the series fails. It stays far more focused on intimate portraiture and tries to develop a plausible and well-argued thesis about the role of judicial temperament in influencing the Court. Rosen doesn't purport to be presenting a broad history, so his omissions are less disconcerting. The movie doesn't stay true to the case study method that works so well in Rosen's well-written volume.

The film purports to be but fails to succeed as a well-rounded and moderately comprehensive account of the Supreme Court. In the series, there is no mention of the Court's work overseeing a growing web of lower courts; no mention of its control over its own docket; and no discussion of its work deciding cases outside the constitutional law arena, even though the casework of the Court involves more statutory interpretation than it does constitutional interpretation. Indeed, a schoolchild might come away from this documentary thinking the Supreme Court is only a Constitutional Court.

There is also no discussion of the Court's place in the affirmative action debate; no discussion of its role in the administration of war (a subject of substantial interest currently); too little on the Court's important role in navigating the separation of church and state; and no mention of the battle over the nomination and confirmation of Clarence Thomas, which has had very substantial effects on the politics of appointment on the modern Court.

In the final analysis, the four-hour experience is still educational. Even constitutional law professors might learn a factoid or two that they can bring to the classroom. Yet one can't quite imagine such an anodyne documentary being made about the other branches of our government, institutions that would be odd to adulate in the way the Supreme Court is here. But maybe it is all-too-American to see the Supreme Court as a temple of justice that cannot be desecrated.


Ethan J. Leib is a law professor at the University of California's Hastings College of the Law in San Francisco. He is the author of Deliberative Democracy in America: A Proposal for a Popular Branch of Government (paperback, 2005) and the co-editor of The Search for Deliberative Democracy in China (2006).

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