Oddly enough, for an institution that operates amid red velvet curtains, austere costumes, and dark lighting, the U.S. Supreme Court is rarely the subject of films, television shows, or plays. This Wikipedia listing of movies about the Supreme Court is staggeringly short, considering that the court has been one of the most powerful elements of our government for more than two centuries.
The court resists being dramatized in film and onstage by design. It is almost completely closed to the public. Its public sessions are deliberately obfuscating and arcane. And unless someone is screaming about nudity or, well, screaming about nudity, it’s rather rare to see the daily work of the court portrayed in American theater. By some kind of tacit agreement, the court remains romantically mystified and the American public remains … just mystified.
But all that seems to have changed this spring, with an explosion of plays, films, and other media projects about Supreme Court justices. The big SCOTUS news last week (it was a slow SCOTUS news week) was the announcement of Natalie Portman’s upcoming role as Justice Ruth Bader Ginsburg in the new Marielle Heller film, On the Basis of Sex. HBO also announced this month that Wendell Pierce will play Justice Clarence Thomas opposite Kerry Washington in Confirmation, about Thomas’ dramatic 1991 Supreme Court confirmation battle. Then there is The Originalist, a new play by John Strand that garnered a good deal of attention this spring with its portrayal of an imagined relationship between Justice Antonin Scalia and a liberal law clerk. And coming in July we will have Derrick Wang’s production of Scalia/Ginsburg, an opera inspired by the written opinions and dissents of the two famous ideological opponents, buddies, and opera buffs.
Last week, as we taped our law podcast, Amicus, on the topic of the court and the cameras, it was striking that the justices who are suddenly receiving the lion’s share of the public attention are not the same justices that court watchers tend to be obsessed with; certainly they are not the members of the court we usually focus upon in the podcast. While Ginsburg, for instance, has become a national celebrity—feted on bags and T-shirts and YouTube videos and now biopics—she is rather rarely the deciding vote in a case. Same goes for Scalia. He is deliciously quotable and often the star of oral argument. But, as has frequently been observed, he is not necessarily the man driving any individual case, or even the man persuading his colleagues with those fiery opinions. The same goes for Thomas. He is fascinating, and his life story is singular. But those of us who watch the court for a living tend to be watching Chief Justice John Roberts and Justice Anthony Kennedy as we try to read the course the court is setting on any given day.
So why is it that just as the court is experiencing a cultural and media moment—one that seems unprecedented given the paucity of interest in the past—the justices who are in fact shaping the work of the court have almost completely escaped artistic and dramatic attention?
One explanation is that, at least when it comes to drama, America simply likes characters, stories, and conflict, and that the operatic friendship between Scalia and Ginsburg, or the ripped-from-the-Scandal-headlines of the Thomas confirmation hearings, better lends itself to the types of stories people want to hear and see. Justice John Paul Stevens, at an event this week put on by the Alliance for Justice, observed simply that Ginsburg and Scalia are just interesting people.
Another possibility is that the growing polarization of the court mirrors the polarization of the American people and that, as a consequence, when we pick our heroes at the court, they tend to be the feminist icon, Ginsburg; or the outspoken Latina, Justice Sonia Sotomayor; or the tireless conservative firebrands Scalia and Thomas. They are the ones we want to write movies and operas about precisely because they are the ones that we see as heroes: They inspire and galvanize us precisely because we know how they will vote in most cases. Nobody, to my knowledge, wants to watch a film called Anthony Kennedy Agonizes About the Casey Decision. (Somehow, the most Shakespearean of jurists still defies Shakespeare treatment). But a movie about Ginsburg among a sea of men at Harvard University? Ginsburg concealing her pregnancy to keep her teaching job and writing the briefs in the sex discrimination case Reed v. Reed? This is the stuff of American cultural legend. It may not reflect the role Ginsburg plays on the court today, but it speaks volumes about why so many young American women revere her.
There is another possibility: Scalia has long said that he writes his dissents for the law students and the public, and not his colleagues, whom he more and more often despairs of persuading. Likewise, to the extent that Ginsburg’s dissents have changed in recent years, it’s because she has grown beyond the polite institutional actor at the court and started to write instead to the legions of young women who will read her, quote her, make memes about her, and sport the T-shirts. Ginsburg and Scalia are not merely two of the most ideologically disparate justices. They are also the two who have chosen to engage in a dialogue with the public itself. Their writing is fiery and inspiring. Their project is advocacy. They are writing for the law books and the Tumblrs, but their work doesn’t necessarily reflect the complicated, incremental give and take of some of their colleagues. Anyone who’s been looking closely at the SCOTUSblog statistics so far this term would probably rather watch an opera about Justice Elena Kagan and Chief Justice John Roberts: How are they arriving at agreement and what does it mean for the next generation at the court? This may be the real drama of the Supreme Court’s daily life. But it’s awfully hard to render on film.
The Supreme Court is getting ready for its close-up, whether or not it wants one. Between the high stakes marriage-equality cases and the tussle over the future of the Affordable Care Act, and with an election barreling down on us and an aging pool of justices to be replaced sooner rather than later, the court is closer to the national consciousness than usual this spring. Interestingly enough, the close-up we will mostly witness will be personality-driven and conflict-based, precisely the image the court—and certainly the chief justice—strives to deny and obscure. Operatic battles between big personalities are rarely the stuff jurisprudence is made of. But it’s coming, in song, to a theater or screen near you.