Law & disorder.

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Jan. 14 2002 5:02 PM

Law & Disorder

First Monday's Justices "Get Out There and Make Historyyyyyyyyyy!"

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In the U.S. Supreme Court, as conceived by the gentle folks at CBS TV, every justice's chambers, every cafeteria table, every stairwell, and every ladies' room is a battleground. Law clerks holler at one another in the hallways, justices lobby each other in the gym, and every single trip up or down a staircase demands a referendum on one's vote in the upcoming case. In First Monday—television's first attempt to produce a dramatic show about the U.S. Supreme Court, premiering this Tuesday—making law amounts to windy sound-byte-type monologues (" … woman's right to choose, blah, blah … ") punctuated by the occasional tantrum. If the real Supreme Court operated in this fashion, there would probably be a lot more fistfights.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

In the wake of last year's Bush v. Gore—a moment at which there really was the delicious possibility of Supreme Court fistfights—both CBS and ABC determined that the public would take to a show about the inner workings of the high court, in the same way they have taken to a show about the White House. And while a dramatic series involving nine of the nation's elderly reviewing pleadings all day may not possess the tensions inherent in, say, a presidential veto or a hostage crisis, the networks somehow felt that they could render a show as full of tension and conflict as, say, The West Wing.

One sure sign that the writers don't have enough of it is Curveball, the pundit show-within-the show that plays in the backgrounds as the clerks bellow at one another. The real Charles Bierbauer supervises as the real Barry Scheck and the real Gloria Allred go at each other. The idea seems to be that a few seconds of CNN-style debate will articulate the legal dispute in sufficient detail to enlighten and engage the viewer. The effect is that both First Monday and Curveball trade in the brand of hysterical overstatement that can make TV punditry so profoundly uninteresting. No one in the U.S. Supreme Court building—not the law clerks and not the cafeteria lady—trades in the kind of oversimplified moral clichés with which First Monday is teeming.

Really good legal TV—I'm thinking here of Law & Order—can flesh out an interesting legal problem over the course of an hour, by subordinating the main characters to the dispute. Does anyone know who Jack McCoy is dating in any given year? Does anyone even care? But First Monday, in addition to offering us the definitive moral answer for judicial bypass in abortion determinations, also introduces us to nine justices and four law clerks: their politics, their romances, their hopes and dreams. The inevitable result—with only 50 minutes of prime time plot development—is a clutch of gruesomely tired archetypes: the liberal Jewish justice who appears to have disembarked at Ellis Island only seconds before the show opens; the liberal African-American justice who always agrees with the Jewish justice without ever making an argument; the limerick-cracking Charles Durning, who plays a boorish Pat Buchanan in an electric wheelchair. There is no subtlety or nuance in any character and even less subtlety or nuance in any position or argument they might espouse. There is only the shouting.

It would be easy to pick apart First Monday for all the ways in which it departs from the reality of life at the high court, and I suspect most court watchers will revel in doing so. For instance, the show erroneously suggests that it takes five, as opposed to four, justices to vote to hear a case (this error is allegedly being corrected in time for the premiere on Tuesday), and CBS's justices engage in cheerful colloquies with the actual parties during oral argument. CBS law clerks also date the lawyers from oral argument. And by poring over autopsy reports, law clerks discover that the death row prisoner didn't really commit the murder. Justices vote on cases immediately after oral argument (allowing us to solve the real-life problem of having no decision until months after an argument). But such criticisms are mostly crabbed and irrelevant. The show is, after all, a drama, and if it can gin up a little public curiosity by offering a peek behind the white marble and red velvet on Maryland Avenue, this might only be for the good.

The problem is, the show has chosen to dramatize a subject that pretty much defies drama. The principal import and export of the U.S. Supreme Court is words on white paper. By the time the heinous murders and stirring civil rights cases have reached the court, they have usually become bloodlessly legal; abstracted into arcane argument. This dispassion makes it possible for the court to operate without fistfights. In the U.S. Supreme Court, we see no brilliant cross-examination, no surly murderer, no tense jury deliberation. And although on First Monday we get to see the parties to the cases, they barely speak. This is because the drama at the high court happens in pleadings, bench memos, and opinions. So, tension and conflict are expressed on the show by endless shouting in the hallways.

In perhaps the most excruciating moment of First Monday, the chief justice, played by James Garner, leads the Brethren from their dressing room into oral argument with a basketball style huddle—they stick their hands in the middle, the chief calls out, "Let's go out there and make history!" and they variously charge and/or wheel out into the courtroom to make some law. Like the X-Men meets Cocoon. While the real Chief Justice Rehnquist might occasionally think those words to himself, the fact that he would never say them—the fact that none of the nine justices would ever say them or berate one another in the halls—makes the high court a good deal less interesting than the court on CBS. There is drama and passion in the real Supreme Court; in their restraint, in their unfailing rectitude and all-around uptightness. But that kind of drama will not make for good television, even if it really does make for good history.