And Prime Time for All

by Jeffrey Rosen | August 5, 2002

First Monday CBS The Court ABCWhen Law Goes Pop: The Vanishing Line Between Law and Popular Culture by Richard K. Sherwin (University of Chicago Press, 325 pp., $27) Click here to purchase the book. The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington edited by Dennis J. Hutchinson and David J. Garrow (University of Chicago Press, 310 pp., $32.50) Click here to purchase the book. I. In recent months, two network dramas about the Supreme Court were introduced with the usual hype and then promptly canceled. First Monday lasted a few months; The Court lasted only a few episodes. No one lamented the rise and fall of these earnest but shallow shows: both turned out to be formulaic soap operas that congratulated themselves in every scene upon their allegedly higher purpose. The shows, after all, purported to bring legal and moral and political and philosophical issues to the prime-time audience: to entertain by educating and to educate by entertaining. Alas, they did neither; but during their mercifully brief runs both shows revealed useful lessons about the way the Supreme Court has been received in American popular culture. First Monday and The Court followed strikingly similar scripts, constructed out of clichs and stereotypes. Both shows revolved around an earnest and incorruptible swing justice who had just been appointed to an evenly divided Court, composed of four predictable conservatives and four reliable liberals. Realism! Rather than siding with the warring factions, the heroes of both shows- -Joe Mantegna in First Monday and Sally Field in The Court--resolved to keep an open mind and to vote their conscience in each case. ("There's no middle ground here," a snarling colleague tells Field on her first day on the job. "I don't know where you're coming from. Do you?" "There's only one way to answer that," she replies gravely. "It's one vote at a time.") Both characters were devoted to their spouses and constantly suggesting in the bedroom that they would rather be making love than law. Mantegna played Joseph Novelli, a tough but fair Italian-American who relaxed by cooking pasta for his wife and kids. Field played Kate Nolan, a tough but fair former governor who relaxed by walking soulfully up the Supreme Court steps to gaze at the legend "Equal Justice Under Law." (Throughout these inspirational walks, you kept imagining her gathering up her robes, stretching out her arms, and taking off: the Flying Justice.) The clerks on both shows were played by extremely good-looking young models-- a liberal young woman and a conservative young man--who flirted constantly with each other and competed for their justices' ears. Their job consisted of walking up and down the public staircases of the Supreme Court theatrically arguing the merits of each case as the silent justices walked in front of them listening intently. All the clerks burned with righteous passion, and when the justices decided to reject their arguments the young intellectual stallions threatened to quit in protest. "My integrity won't permit me to be little more than conservative window dressing. I think I should resign," said Miguel on First Monday after the justice refused his recommendation to overrule Roe v. Wade. "I know you have the intelligence and fervor to be the other end of a seesaw," Novelli replied. "But I never thought you'd be lacking the most important ingredient: the balls." On The Court, the resignation scene was more of an International Coffees moment. "This isn't about my career. It's about having blood on our hands," said the sobbing liberal sexpot when Sally Field refused to grant a stay in death penalty cases. "I'll resign." Field gave her a hug and wiped away her tears. "I respect your passion," she sagaciously responded. "I need it. I don't ever want the decision I made tonight to be easy. OK? Go home. We'll talk tomorrow." "Thank you," sniffled the juicy clerk gratefully as the violins swelled. The other justices on both shows were interchangeable caricatures from central casting. There was the tough-talking liberal woman from New York; the fat, tippling, Catholic, pro-life, conservative old white guy; the kindly and wise liberal black woman; and the kindly and wise liberal black man. The chief justices--played by James Garner and Pat Hingle--were avuncular conservatives, principled but always aware that life is complicated, who lobbied the new justices by inviting them over for sherry or for workouts in the Supreme Court gym. They were as predictable as the real talking heads--such as Jerry Falwell and Gloria Allred--who played themselves on both shows' parodies of Crossfire, a show called Curveball, yelling embarrassingly at each other and rehearsing the most extreme arguments in each case. (Maybe they weren't parodies after all. ) In a jarring merger of reality and fantasy, Joe Mantegna made up his mind in important cases by listening to the arguments parroted by Falwell and Allred on the fictional show. In fact, both First Monday and The Court gave us the Curveball view of the law, in which all the arguments are presented in the most polarized and simplistic terms and only the open-minded hero can ensure the triumph of justice. But the vision of justice that was peddled on prime-time television was entirely personal. Instead of exploring the clash of important legal principles, every case was reduced to the most formulaic human drama, with a Big Conflict (usually involving violence or sex); a tie-breaking vote cast by the swing justice, who was sorely tempted to do the wrong thing because of a domestic drama of his own that tidily paralleled the one in the courtroom; and a neat resolution as the credits rolled. What was sorely missing from these depictions of the law was the law itself. The formula was encapsulated in an episode of First Monday called "Age of Consent." The show began in a courtroom. "I believe you are sufficiently well informed to proceed with the abortion," the trial judge told a sobbing young woman. "No!" shrieked her mother. "You can't tell her that!" "Actually, according to the U.S. Supreme Court, I have no choice," he replied. The legal question seemed to be whether the Supreme Court should overturn its decision of 1979 that states may not require minors to obtain their parents' consent before getting an abortion without allowing judges to excuse them from the requirement in unusual circumstances. But in this primetime vaudeville, the distinction between the Supreme Court and the legislature was constantly confused. In one particularly muddled scene, the two pro-life justices were conspiring together over brandy. "Abortion is wrong, Thomas," said one. "But is it unconstitutional?" Thomas asked boozily. "It is if we can muster five votes," his worldly colleague replied. Good melodrama; bad constitutional law. The Supreme Court does not now have the power to make abortion unconstitutional. It has the power only to uphold or to strike down laws passed by Congress or state legislatures declaring abortion to be illegal. If the Supreme Court overturned Roe v. Wade tomorrow, abortion would be neither unconstitutional nor constitutional; instead Congress or the states would be free to protect or to restrict abortion according to the people's will. But on First Monday, every legal question was personalized, so the justices ended up arguing not whether the Constitution requires a judicial bypass procedure but whether a particular young woman was mature enough to get her abortion. And the answer, inevitably, was yes. In a tearful conversation with his wife, Novelli agonized over the abortion decision, and over the fact that his son wanted to go to Europe with his friends. "He's the same age as that girl who wants an abortion," his wife observed. "Are you saying that because I won't let Andrew go to Europe, I shouldn't let that girl have an abortion?" Novelli asked searchingly. "Shouldn't we let a parent make that decision, not a judge?" asked his wife. "Speaking as a parent, yes. As a judge, I don't know," he replied. In the end, of course, Novelli was swayed by his domestic drama: his son visited him in his chambers and reminded the justice that he, too, had taken a trip to Europe when he was young and made his own mistakes. "You raised me," the son said. "Do you honestly believe I can't handle myself as well as you did?" The justice thanked his son for teaching him an invaluable lesson about the wisdom of youth. (In these shows the clerks and the children were always the justices' teachers: all traditional forms of authority were turned upside down.) And in the justices' conference Novelli announced that his conversation with his son convinced him to cast the tie-breaking vote to allow the girl to have an abortion without her parents' consent. Then the domestic conflict was glibly resolved. The girl's parents ran into their daughter and her lawyer in an airport on the way to have the abortion. Despite their defeat in the Supreme Court, they immediately hugged and made up. "Your mom and I can never agree with what you're going to do, but neither can we stop loving you," said the father. "Would you like me to be there when you do it?" asked the mother. "Would you?" sobbed the girl. "Of course. It will be OK, baby. It will be OK." More hugs, more tears. It never occurred to the makers of these shows that there are times when the conflict between principle and emotion must be resolved in favor of principle; that the personal is not always the highest authority; that a contradiction between what one believes and what one loves must sometimes be only endured, because it cannot be neatly resolved. But this is television, where complexities are never more than plot devices and people never do more than feel. And so the other episodes of First Monday followed the same dreary pattern. In the right-to-die episode--every episode was designed to push another political button, as if the business of the Court consisted entirely in wedge issues--the question was whether a wife should be able to pull the plug on her comatose husband against the wishes of her daughter. Charles Durning, the fat, tippling, Catholic pro-lifer, was humiliated by the fact that his colleagues thought he was losing it and wanted him to resign. Equating his own fate with that of the comatose man, he led the fight to keep the man alive. And lo and behold, Mantegna had an aunt who was also comatose, and an uncle who had promised to sit at his wife's bedside until she expired of natural causes. Mantegna was swayed in the end by the wife's devotion to her husband. "I believe she is operating in good faith, and I don't think I could make a better decision that she," he said at the conference, casting the tie-breaking vote to let her pull her plug. He then called his comatose aunt to assure her that he would never pull the plug on her. "Aunt Zena, it's Joey," he sniffled as the credits rolled. Of course, no real justice would put himself in the position of judging the good faith of a particular family member in a right-to-die case. But the constitutional question--was the Supreme Court wrong to hold in 1990 that states may require people to make their intentions clear before family members can pull the plug on their behalf?--was too abstract to be entertaining, and therefore too abstract to be entertained. Television reporters who cover the Supreme Court regularly complain that their editors have no patience for legal arguments, which are too removed from daily life to interest a television audience. Instead, the reporters are forced to reduce every case to human terms, telling cloying stories about the personal ordeals of the parties in the case. These dramas have little to do with the work of the Court itself, since most justices are moved more by ideas, ideologies, constitutional methodologies, temperament, and their attitudes toward precedents than by their sympathy or antipathy for the parties in a particular case. Indeed, Justice Antonin Scalia has argued that a focus on doing justice for a particular plaintiff and defendant, in the manner of a common law judge, is an inappropriate model for judges in constitutional cases, who are supposed to be governed by attention to constitutional text and history rather than distracted by the human dramas before them. After all, law exists in part to challenge the authority of emotion and experience, aspiring to detachment and objectivity. But in our popular culture (and among some of our philosophers, too), everything is a story and subjectivity is gold. II. Richard K. Sherwin worries that legal culture and popular culture are not merely intermingling on television shows. He argues in his new book that televised depictions of law are also shaping the perceptions and the processes of reasoning that influence the way jurors judge and voters vote. Owing to the narrative demands of television, which require images rather than arguments, and which are driven by sentiments rather than by facts, law is increasingly becoming a spectacle, mimicking the style, the techniques, and the visual logic of advertising and public relations. "The trial stories that offer the most familiar images, characters, and plot forms," Sherwin contends, "are the ones most likely to get on the air. Once ensconced there, they are more likely to stick in the viewer's mind (including actual or prospective jurors).... This encourages lawyers and their public relations agents to pitch their clients' stories in terms of TV reality."; "Aside from the voyeuristic pleasure of seeing an eccentric justice unmasked in his boudoir, what do we learn from this weird and strangely compelling book?" Sherwin worries that as the courts are internalizing and reflecting the image-based logic of popular culture, "law's breaking function, its ability to check popular passions and prejudices, breaks down." The transformation of legal into televised reality "involves sensationalization, subjectification ... the fragmentation of authority," and a general erosion of law's legitimacy. And "that is what happens when law goes pop." Sherwin worries a little too much. If these solemn, boring Supreme Court shows are any guide, the vision of justice that television projects does not really reflect popular passions and prejudices. Instead of being crudely majoritarian or even conventionally liberal in the Hollywood style, the swing justices on both shows tended to take positions that were reliably libertarian. The girl gets the abortion, the wife gets to pull the plug, a sexual harassment code in school is struck down. Yet the libertarianism of the shows hardly expresses a principled commitment to individual freedom. It is, rather, an offshoot of the requirements of narrativity: by placing an individual at the center of each drama, and by creating a dramatic human conflict that must be resolved by the end of the hour, the writers stacked the deck in favor of allowing the individual to do whatever it was that the state or the evil family member or some other authority figure was trying to prevent him or her from doing. These shows were not biased toward mob rule. They depicted instead the banality of sentimental individualism. As Sherwin notes, "people prefer stories neat. Recognizable characters, familiar motives, and recurring scenarios of conflict and resolution are typical elements of our workaday narrative world." Storytelling takes the place of reasoning; and the story requires an easily recognized narrative, which often tries to attract an audience by creating an intense and even lurid conflict, a backstage drama, and a satisfying resolution. Like trial lawyers, television producers try to tap into what Aristotle called "enthymemes," which Sherwin defines as "the common constructs we carry around in our heads ... the recurrent scripts and simplified worlds, the familiar stories and scenarios, the popular character types and plot lines ... that serve as the building blocks of reality making." The people who write the scripts assume that a mass audience will respond more viscerally to characters with whom it can identify; and the visceral response is all. And so there is good news in the failure of these Supreme Court shows to catch on, and a warning to Sherwin-like pessimists. When the law stories are too simplistic, earnest, and trite, they lose their appeal and are canceled. It may be that judges, unlike cops, are essentially untelegenic. An unblinking account of the real Supreme Court justices, in all their undramatic yet surprising eccentricities, would reveal far more about the way law is made than the earnest platitudes of these unlamented prime-time legal soaps. Happily, a tellall memoir from the age before tell-all memoirs has just stepped into the void. The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington is the first personal memoir drafted by a Supreme Court law clerk. The egregious invasion of privacy that this memoir represents is partly (but only partly) mitigated by the fact that the book was published nearly fifty years after the death of the justice in question, James McReynolds. The portrait that emerges from this odd and unexpectedly riveting book could not possibly have been invented by the most creative scriptwriters in Hollywood. McReynolds was one of the most unpleasant characters ever to sit on the Supreme Court. Known as "the rudest man in Washington," he was an unapologetic racist and anti-Semite. There was no Supreme Court picture in 1924 because McReynolds refused to be photographed next to Brandeis, as protocol required; and he also declined to sign the traditional letter of regret in 1939 when Brandeis retired. When John Knox expressed an interest in meeting Brandeis, McReynolds's manservant Harry explained that this was impossible: the only Jew who had ever been allowed in McReynolds's apartment was Mr. Garfinkle, from the Washington department store. In his clerk's account, McReynolds was equally disdainful of blacks. He reprimanded Knox for getting too close to Harry, noting: "I do wish you would think of my wishes in this matter in your future relations with darkies." And he treated Harry, who was as much a nursemaid to him as a valet, as a human hound dog: when McReynolds shot ducks in the Virginia countryside, he insisted that Harry wade into the freezing water to fetch them. "Man, oh man, is that cold work!" Harry exclaimed. "This is the story of a bachelor seventy-five years old, and of my experience with him and his Negro maid and butler," this extraordinary memoir begins--Mr. Belvedere meets Jim Crow. The opening sentence certainly promises a good story, but there is no danger of televisual vulgarity, because the world that Knox describes is planets away from the false informality and the cloying familiarity of television. Instead of cooking pasta for his clerk, Justice McReynolds subjected him to a year of terror. Knox was cautioned by a fellow justice always to stand in McReynolds's presence unless he was asked to have a seat, and to address him as "sir" at all times. He was expected to sit at his desk in McReynolds's apartment even when he had no work to do, and McReynolds, whom we would call a control freak, often telephoned from the Court for the sole purpose of making sure that the young man had not left his post. "I was beginning to feel that his was truly a complex personality," Knox writes. "Though I had already lived for several weeks in intimate and daily association with him, I still felt that I did not know him at all." To break down the justice's reserve, Knox asked him what advice he would give to a young lawyer just starting out in practice. McReynolds promised to think about this innocuous request, but said nothing for three days. On the fourth day he appeared in a starched-cuff shirt and an ornate silk lounging robe to deliver an impassioned soliloquy against the New Deal. He railed against the Roosevelt administration for leading the country "down the road to Socialism and the destruction of states' rights" by repudiating the campaign platform of 1932, recognizing Soviet Russia, and creating the New Deal bureaucracy in Washington. "If it were not for the Court," he announced, "this Country would go too far down the road to Socialism ever to return." After a dreamy pause, he ended his reverie and returned to the subject at hand. "Also, don't be a bachelor," he exclaimed. "And another thing! Don't ever wear a red tie. It is much too effeminate for a lawyer to do. I don't like red ties!" In order to talk behind his back, McReynolds's servants gave him a secret code name: Pussywillow. This lends a nice air of drawing-room comedy to the proceedings. "`Oh, Oh,' Mary exclaimed under her breath in a typical apostrophe. `That must be Pussywillow. How come he's come home so soon?'" Pussywillow appalls Knox by splashing around so enthusiastically in his bath every morning that he leaves pools of water in his wake. But there was nothing comic about McReynolds's glacial relations with his servants and clerk. McReynolds forced Knox to spend much of his time mastering the Japanese complexity of calling- card etiquette that governed Washington's social scene before the war. (If a justice wished to recognize a family socially and allow them to invite him to dinner, his card had to be sent within twenty-four hours after the family had left cards with him. If it was delivered by hand, the right-hand corner had to be folded over, a requirement that confused Knox for several days.) McReynolds's dictated opinions were so conclusory and superficial that Knox came to scorn him. "I also felt that scores of members of the 1936 class at Harvard Law School could have produced a better opinion than the one McReynolds wrote," he declares. (It is a typical clerk's conceit.) Although appointed by Woodrow Wilson, who was happy to promote his disruptive attorney general, McReynolds abandoned the trust-busting that made his early reputation. On the Court he became an opponent of economic regulation in all of its forms. His opinions were brief and noted mainly for the fervor of their resistance to the New Deal: dissenting from the Court's holding that the National Labor Relations Board could regulate a steel company because its activities were national in scope, McReynolds objected that, according to the majority's theory, "almost anything--marriage, birth, death--may in some fashion" be subject to federal regulation. (The conservatives on the Rehnquist Court have used the same example in resurrecting limits on Congress's power today.) Instead of threatening to resign when McReynolds voted to strike down the New Deal, Knox held his tongue. But when McReynolds discovered Knox studying for the bar in the Court library rather than waiting in his empty apartment, he fired his clerk thirteen days before the end of the term. Still, even McReynolds had his tender side: he had a liking for young children, which he demonstrated by having himself photographed with a mother and her baby during an excursion to West Point, and when he died he left more money to war orphans than to his longtime retainers Harry and Mary. You end up liking the egregious McReynolds more than the sappy justices on the television shows, because he is more recognizably human. Aside from the voyeuristic pleasure of seeing an eccentric justice unmasked in his boudoir, what do we learn from this weird and strangely compelling book? There is, most of all, the discovery that McReynolds's opinions opposing the New Deal were based less on a commitment to constitutional principle than on a virulent hatred of Franklin Delano Roosevelt. The justice goes into a funk when it appears that Roosevelt will win the election of 1936 and anxiously consults with his stockbroker about how to protect his assets during the Court-packing plan. After Justice Owen J. Roberts's "switch in time," which led to the narrow upholding of the New Deal, McReynolds meets with his fellow conservative dissenters, the four horsemen, in his apartment to divvy up the dissenting opinions in the important New Deal cases. But instead of rising to the occasion, the lazy McReynolds produces slipshod, cut-and-paste dissents, which he declines to read from the bench, preferring instead to deliver an impassioned extemporaneous denunciation of the New Deal that goes on for a half-hour. Holmes considered McReynolds an uninteresting lawyer but an "extraordinary personality--what matters most to him are personal relations, the affections. He is a Naturmensch--he has very tender affections and corresponding hates." McReynolds's affections were focused on the children of strangers, while his hates included many of those who surrounded him--blacks, Jews, and weak men such as Knox. (As it happens, Knox had a sad life after his clerkship, moving from failure to failure but always dreaming of the posthumous fame that his memoir would bring.) But unlike the earnest characters on the Supreme Court docudramas, McReynolds was not swayed from case to case by his personal sympathies for one party or the other. Instead his sympathies and his antipathies were more general--at times they seem almost like principles, even if they seem also like ugly principles--and more jarring. This is why it is more illuminating to peek behind the curtain of McReynolds's harrowing household than to peer at the boring family dramas trotted out by the networks. Justice Scalia has opposed the introduction of cameras in the courtroom on the grounds that the arguments are likely to be taken out of context. Since the television audience has a short attention span, Scalia argues, melodramatic snippets of oral arguments will be played on the evening news, reducing the legal issues in each case to banal human dramas and giving a misleading impression of the stakes in each case. If the arguments were broadcast in their entirety, Scalia argues, he would withdraw his objection, but he believes that few Americans would sit through the arguments from beginning to end, and so he fears that cameras would distort public understanding of the Supreme Court rather than increasing it. Network television has just proven him right, although in one respect it is a pity that the proceedings of the Supreme Court will not make it into the dens and the rec rooms of America: it has been a long time since prime time has delivered as sophisticated and Manichaean a rogue as Scalia himself.

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