It would seem to be an impossible task for anyone to try to get their arms around the history of the Supreme Court, daunting in speaking to all its different eras alone even before the fact that its proceedings are typically cloaked in secrecy. However, if anyone could do it, it surely is Dawn Porter, who has found a way of articulating the real world effects that the law has on governing American society, particularly its most vulnerable communities, and as one watches “Deadlocked: How America Shaped the Supreme Court,” the filmmaker’s new four-part series about how the nation’s highest court has fallen into crisis, one is inspired to go back and watch her films “Gideon’s Army” about the inspirational and thankless work of public defenders whose practice is made possible by the Gideon V. Wainwright decision ensuring every person’s right to legal counsel; “Trapped,” which visited abortion clinics in the South to see how they were imperiled by egregiously enforced regulations, or even her recent doc on Cirque du Soleil, currently on the festival circuit, when the acrobatic contortions of the circus troupe resemble recent decisions under the Roberts Court to justify rulings on the right to choose and the ongoing viability of the Voting Rights Act.
With her miniseries “Bobby Kennedy for President” and “The Lady Bird Diaries,” offering an intimate view of the formidable First Lady Claudia Johnson, who stood by the side of President Lyndon B. Johnson, Porter’s recent concentration on the pivotal decade of the 1960s enables her to be a prophet when looking at the Supreme Court, able to connect the dots between the Earl Warren-led court, where a series of landmark rulings protecting individual freedoms came as a shock to the system and certainly the president that appointed him, Republican Dwight D. Eisenhower, to the pendulum swing to the current Court where no decision seems in doubt before it happens when appointees are heavily vetted beforehand and the selection process has been offloaded to politically-aligned think tanks such as the Federalist Society. When few modern rulings can come as a surprise and Americans have become increasingly accustomed to the politicization of a branch of government once thought to be untouched by partisan considerations, what does end up turning heads in “Deadlocked” is the recognition that things weren’t always this way, with the Court appearing less and less connected to the people they serve in the decisions they hand down, but perhaps even more so in a world that is growing more isolated and less open-minded.
“Deadlocked” highlights more recently recurring abnormalities such as the shadow docket, a once rarely-used last resort for cases needing immediate rulings that has become a hotbed for major decisions that forgo written opinions for the public, and the lack of a centrist core that can force rigorous debate before drawing conclusions and the series challenges assumptions about how the Court went about its business in the past and how judges were confirmed by delving deep into its history, illuminating how past precedent may have weakened in legal considerations over the years but has intensified when it comes to seating new justices. The punchy pacing of the series isn’t the only way in which Porter gets the heart pumping and for as big a subject as she takes on, “Deadlocked” delivers on how the Court impacts people on a personal level and its current constitution is shaping the future in ways we can’t even fully yet comprehend. On the eve of the series premiere on Showtime where it will be airing on Fridays for the next month and streaming on Paramount+ thereafter, Porter graciously spoke about putting all her past experiences to use on the ambitious project, evolving from its original conception around court confirmations and taking full advantage of being able to take a long view of a subject that’s in the news every day.
Given your previous films and miniseries, this seems like the type of project you’ve been working towards your whole career. Did you feel there was some cross-pollination going on?
There definitely was. I think all of the films speak to each other in different ways, but of course, I’m a lawyer, and I went to Georgetown, and I lived in DC for 10 years, so I naturally gravitate to legal topics and the Supreme Court has been in the news, justifiably so, and not always for great reasons, with increasing frequency, so the first question when you pick any project is do you have something to say? Why are you the person to enter into this conversation in this way? And as a former lawyer and a person who’s been making films about history for a while, I thought the things that I’m curious about, I bet a lot of people are curious about, so it did seem like the perfect project for me.
You’ve said that originally this might’ve been strictly about the confirmation process, which would’ve made for a fascinating film all on its own. How did it expand into a broader history of the court?
Sometimes your geekiness is revealed and I thought, “Oh, we could just do hours and hours on the confirmation process” because it’s so fascinating. You know Earl Warren had no confirmation hearings. Thurgood Marshall was assaulted during his confirmation hearings by Democrats, largely on the basis of race, and then of course we have explosive confirmation hearings like Judge Bork or Kavanaugh or Clarence Thomas. Of course, all of that shows up in the series, but as we started looking into putting it together — we looked at something like 7,000 pieces of archive and there’s 200 minutes of archives in the series across the four hours — I just started to think, I am so fortunate that I have a legal education, but most people don’t have that and they don’t remember the history or were never taught the history and they’re certainly not going to be taught it now, so [it was an] opportunity to remind people.
Then as it got broader, as the idea for the series got broader, it presented a different kind of problem. And the different problem was, this is so vast. It’s a few hundred years of history. Where do we focus? And what I wanted to do was focus on the Warren Court, a court that many people always thought of because it’s the court that brought us Brown v. Board of Education and the Miranda ruling saying, you are to be read your rights and reminded that you have rights in this country. It brought us Roe v. Wade — all of these decisions that impact our lives on almost a daily basis. So I thought, let’s remember that this is what the court can do because it’s so far away from what the court is doing now, where it feels like it is limiting rights instead of expanding and protecting rights for people who don’t have power.
Was it difficult to figure out at what point in history to start to get to this modern court and organize this into a four-episode structure?
Yeah, it was hard because there’s so much that you want to point out. We worked on it for three years and we certainly battled with structure and moved things around. We settled on where we settled because the Warren Court was so consequential, but we could have gone back to a place where Roosevelt’s New Deal was challenged and there was a real question about whether the Court was going to allow it to pass. Can you imagine if we didn’t have some of the advances of the New Deal? And Roosevelt was threatening to pack the Court to expand it to get his legislation through and the Court kind of blinked and moderated some of its behavior. Now, as we’re talking about another very conservative court that is frustrating the will of the American people, there’s that same kind of conversation, so it would have been really interesting to go back that far. But I’m grateful for the time that we did have and we always have to make choices. What I’m always thinking about is how do you grab people at the beginning and keep them with you? We’re asking for something really valuable, which is people’s time and attention.
It was all worth it. And I realized what a challenge this must’ve been to gather interviews for when the Court itself rarely makes itself available for public talks, but you don’t rely on historians and analysts either. How did you go about getting the diverse set of perspectives that you did?
There have emerged in recent years a number of really reliable experts, usually, but not always, lawyer/reporters who very closely follow not just the decision — not just the balls and strikes, and who wins and who loses — but they’re really analyzing and looking at how the court is behaving and how it’s making decisions. Is it departing from its past decisions? And if it does that, is it explaining why? So we had a number of those people who are really, really smart who could help us explain things that are complicated or not easily identifiable, and that was the first thing, can we get those people? And they all said yes, [which] was great.
The next challenge was that I don’t ever want to do something where it’s just people of all one political belief speaking because then you’re just preaching in a choir, and that’s not what you want to do with documentaries. So we tried really hard to get people on a diversity of political beliefs, so we have Ted Olson, who’s more on the conservative side and John Ayers, who was in the Reagan Justice Department, John Bash, who was a clerk for Justice Scalia, and Judge Griffiths, who was on the DC Circuit, [who all] self-identify as conservative. But what was common to all of them is they’re all really smart. They are all principled, and I think they’re really worth listening to and understanding their perspectives, but they also all are concerned about the loss of public opinion in the Supreme Court. And that said a lot to all of us, which is that the criticisms of the Court are really transcending political beliefs. They’re really talking about how the Court is behaving and whether that behavior is going to so alienate the public that the public is going to be questioning the value and maybe even the existence of this Court.
You mentioned your background as a lawyer, and you’re always really able to raise issues while showing the human stakes of them. Has that experience helped your storytelling?
It does. I worked for BakerHofstetler as a litigator, and what you do as a litigator is you take things that are complicated and you tell a story. I took a lot of depositions, so I did a lot of listening to folks and realized that a lot of people aren’t listening or are trying to make their own case for something. And here, if I’m making a case for anything, it’s a case for the Supreme Court is important. There’s not an alternative to it. So we have what we have, and we should all be invested in is its stability, so this is not just a criticism of decisions that are coming out. It’s focusing on how is the Court taking cases, how many cases are they deciding and how are these decisions being made.
For example, during the Trump Administration, when he went to the Supreme Court on an emergency basis 38 times and relief was granted 29 times, that is literally unprecedented and there’s a reason for that. You’re only supposed to ask for emergency relief when it’s an emergency. It’s usually used in death penalty cases, and Trump used the emergency docket in order to have the state of Texas’s six-week abortion ban decided. And when you decide cases on an emergency basis, you don’t get any briefs. The court decides without [a written] opinion usually [because a decision is made so quickly], so if you have our Supreme Court, our ultimate court, is deciding cases without telling you how they’ve decided them or what you’re supposed to make from their decisions, how are you supposed to follow it? Is this a one-time thing? Is it just an emergency for this particular case? But when that case on an emergency basis deprives the women of Texas of their constitutional rights, that’s extraordinary. And we should pay attention to that behavior.
It seemed like you had the opposite problem of most documentarians when making this over the last three years – so much has happened that I wondered whether it was difficult to keep your focus when you could be pulled in so many directions with recent rulings and news about the Court?
It was really hard to not chase the news, and we did extend the time for this to come out a few times. You don’t want to feel like you’ve missed it [after] you’ve put all this effort into it, and we had a great team — two lead producers working full time on this, and a team of archivists, and a team finishing, so we had a lot of people with their editors who are working tirelessly. But where I think I would like people to think about this is the daily reporters, the news programs, the print reporters that are following the daily story and what we want to do with this series is to give people a background so that when they’re reading about that questionable ethical decision [by justices, such as accepting gifts from benefactors], they know that there’s no code of ethics [currently in place] and they understand that in the past, justices have not behaved this way. So I hope that this adds to people’s understanding of what they’re seeing now, and that they can really appreciate just how different it is. It’s not their imagination. As Kate Shaw [a professor of law at Cardozo Law School] said in the series, “This is not just a liberal court, it is a radical court.” And what do we think of that? So just asking the question, what do we think of that, if you care about it, [we want to] make sure that people are paying attention.
“Deadlocked: How America Shaped the Supreme Court” starts airing on Showtime on September 22nd and will also be available to stream on Paramount+.