Cultural depictions of the Supreme Court can shed light upon the walled-off world of the justices. But does the court derive power from its inaccessibility? Brooke and Thane Rosenbaum, director of the Forum on Law, Culture & Society at NYU, examine some art and culture about the Supreme Court, and consider just how human we want our justices to be.
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Song: "Zissouu Society Blue Star Cadets" (from the film "The Life Aquatic with Steve Zissou") by Mark Mothersbaugh
BROOKE: For all the drama associated with the Court -- flowing robes, lifetime appointments, nation-changing rulings -- cinematic depictions of the justices are rare. Here’s a sampling. First Monday in October, released in 1981 around the time of Sandra Day O'Connor’s appointment, parodied the notion of a lady justice...
CLIP: Jeff why in god's name do I get a sinking feeling in my gut every time I think about that woman sitting on this court. It's not because she's a woman, I like women, my wife's a woman. The bench will smell better with a little perfume on it. But Ruth Loomis!
BROOKE: That film was a flop. There’s The Pelican Brief, the thriller based on the John Grisham novel, in which two supreme court justices are mysteriously murdered....
CLIP: This is a brief, written by an eager beaver Tulane law student, it’s a theory about who’s behind the assassinations. And indirectly, it implicates the White House.
BROOKE: Steven Spielberg’s Amistad tells the story of shipboard slave mutiny in 1839, the mutineers’ jailing by the US government, and the Supreme court case that ultimately freed them. In the film, Justice Joseph Story is played by a real former supreme court justice, Harry Blackmun.
CLIP: Over one dissent, it is the court's judgement that the defendants are to be released from custody at once. And if they so chose, to be returned to their homes in Africa.
BROOKE: But none of these films ever depict the Court at its real work: the nitty gritty behind the decisions that reverberate through our lives. Maybe it’s because much of the court's work: reading cases and writing briefs - is inherently undramatic. Thane Rosenbaum, director of the Forum on Law Culture and Society at the New York University School of Law, suggests it's also because the court’s work is inherently incompatible with art....
ROSENBAUM: The world of the Supreme Court is a world of narrowing. And art is about expanding the canvas to give more sense of drama of the human experience, the emotional complexity of human beings, and that's really not the business of the court, but by the time you get to the Supreme Court you're arguing points of law, and so the whole experience has a kind of suffocating feeling, and it doesn't have the kind of grandeur of life and the openness of life.
BROOKE: But the impact is so important sometimes, so utterly nation changing.
ROSENBAUM: That's true, everyone is obsessed with either same sex marriage or gun control laws, the affordable care act, citizens united. The relationship between national security and civil liberties. These 5 or 6 areas of the law so profoundly affect and influence the person on the street that it forced them to think for the first time that the Supreme Court was important.
BROOKE: Okay, so, we're in an interesting moment right now. Because there does seem to be a spike in depictions of the Supreme Court in the culture. A number of movies and plays have been produced or they're in the works. What stands out for you?
ROSENBAUM: There's the new biopic that Natalie Portman will be starring in in which she portrays Ruth Bader Ginsburg, title of that I think is On the Basis of Sex. Really that's about Ruth Bader Ginsburg the young lawyer who graduated first in her class at Columbia and can't get a clerkship and how she then dedicates her life to gender and sexual equality. It'll be about the life that lead to her becoming a justice. We have a film that HBO is working on called Confirmation, in which Anita Hill testified against the confirmation of Clarence Thomas. The scandal that erupted in her claims of sexual assault and his denials. That was a very dramatic moment.
BROOKE: But it had very little to do with what the Supreme Court does.
ROSENBAUM: I would be very surprised if they spend five seconds in this HBO movie showing you Clarence Thomas in an actual robe.
BROOKE: Well what about on stage? There is a play called the Originalist, and I guess it imagines a relationship between Justice Antonin Scalia and a liberal law clerk.
ROSENBAUM: Who happens to also be gay. And so you have this probably highly unlikely scenario that Scalia would have hired a female, gay pro-same sex marriage, liberal. It's a very lovely play because he developes a kind of fatherly affection for this young law clerk even though they can't agree on anything. But again my understand of that play, Brooke, is that you don't see Justice Scalia on the bench. You see him arguing with his clerks.
BROOKE: That gets you closer though, that's part of the process, which is more than you can say for Scalia/Ginsburg, the operita.
ROSENBAUM: Yes, but that picks up on the idea that it's possible that two justices that can't agree on anything when it comes to interpreting the constitution, love having dinners together, and love going to the opera together.
BROOKE: Let's listen to a little bit of that.
CLIP: We are different. We are one. The hugest contradiction,,.
BROOKE: Have you seen this?
ROSENBAUM: No I have not. But I enjoyed that immensely.
BROOKE: Obviously the focus is on the justices themselves as characters. What do you think is driving that?
ROSENBAUM: I think the appointment of Sonia Sotomayor has really been a game changer in our expectations on what we want out of Supreme Court justices. President Obama is really responsible for this because when he introduced Sotomayor to the country, he said that she had a compelling life story.
CLIP: As impressive and meaningful as Judge Sotomayor sterling credentials in the law, is her own extraordinary journey. Born in the South Bronx, she was raised in a housing project...
ROSENBAUM: And the Republicans on the Senate judiciary committee went nuts. Judges were supposed to be robed robots, mechanical in their application of the law, no one had ever introduced a justice and actually said that their life experiences is what would make this person a really great supreme court justice. I think it had a lot to do with changing mindsets about, 'well should we know these people?' You know if they have such an impact on our lives. Who they are might have as much to do with their rulings as their ideological principles.
BROOKE: You know weirdly a preview of this came from by far the quietest justice in a case called Virginia v Black.
ROSENBAUM: Quite right. Clarence Thomas famously never speaks during oral argument. And here you have a cross burning case and before the first appellant even got a word out Clarence Thomas jumps into the fray. And he talks about what cross burning meant to African Americans and how threatening it was and how wounding it was.
CLIP: we had almost a hundred years of lynching and activity in the South by the knights of Camelia and the Ku Klux Klan. And this was a reign of terror, and the cross was a symbol of that reign of terror. Isn't that significantly greater than intimidation or threat?
ROSENBAUM: Up until then all the first amendment cases permitted cross burning as a first amendment right, and this was the one case that actually said, 'well you know in situations in which it could be threatening, there could be some restrictions that local governments can impose'. And it had a lot to do with, I think, the discomfort that the Court felt that the one African American on the court stepped out of his robe and said, 'Here I am, I'm a black man.' But again, law professors, judges, Republicans, frown on justices representing their personal interest. That it's really there about judicial temperament, and judicial temperament means that you're emotionally neutral.
BROOKE: William Rehnquist a former chief justice would certainly stand with those you should say are dispassionate and yet had his moments of personal intrusion, for which he was excoriated.
ROSENBAUM: This had to do with oral argument in a case dealing with the family paid leave act, that applied to public government employees which essentially gives paid leave to women who have children. I think it might have even applied to men, in this case dealt with: should we extend that law to private companies? Rehnquist shocked everyone and ruled in favor of extending the benefits to private corporations, he would never be in favor of more government intrusion that extended benefits but what we didn't know, what wasn't widely reported, was that his daughter was going through a nasty divorce and needed help picking up the two daughters. And all of a sudden Justice Rehnquist was grandpa Renquist, and he was asked by his daughter a couple days a week to leave the Supreme Court building to get to school by 3 or 330 and to take the girls home. And it made him very aware. What is it like to be a single parent? When personal lives intrude into the decision making of the court, we see what I would argue are more humanistic decisions. Decisions that make moral sense, not just legal sense.
BROOKE: Let us stipulate that there are cultural products that could be produced that would show us something genuine about the inner life of these justices as they go about their job, would we be hurting the court if we humanized it? Demystifying the mystery on which it bases so much of its power.
ROSENBAUM: No, because the sunlight that exposes the workings of the court give us a deeper appreciation of what the justices are really looking at and the way it affects human beings. Yes, they are not beholden to anyone. They don't have to raise money for elections. But they still work for the people, and to think that to be walled off, to be separated emotionally, intellectually, physically, is what's necessary for them to be sufficiently detached. That doesn't serve their interest, and it certainly doesn't serve our interest.
BROOKE: Now that's an argument for cameras in the courtroom and for greater openness. Is it an argument for more culture about the court?
ROSENBAUM: Art, culture is a very different portal of information of knowledge. The world of the artist is a world that at its core deals with the emotional complexity of human beings. Journalists don't have that obligation. They can do it, but they don't have that obligation. That is entirely the obligation of the artist. One way to understand what human beings gain from seeing cultural depictions of the legal system, you can see right out of Shakespeare’s the Merchant of Venice. Portia, who plays the role of a judge has her very famous quality of mercy speech: ‘mercy seasons justice.’ Think about the word seasoning, adding flavor, changing texture, and you can make the same argument about culture seasoning justice. When you season justice with art and culture, justice itself becomes more comprehensible and it makes us much more willing to accept the outcome, because we understand it in a way that we wouldn't have if it was justice alone.
BROOKE: Thane, thank you very much,
ROSENBAUM: Thank you Brooke, I enjoyed this immensely.
BROOKE: Thane ROSENBAUM is a distinguished fellow at New York University's school of law where he directs the forum on law, culture and society.