Ruth Bader Ginsburg, On the Basis of Sex: Why are there suddenly so many plays and movies about Supreme Court justices? A transcript.

Is the Notorious R.B.G. Ready to Rule on the Silver Screen? A Podcast Transcript.

Is the Notorious R.B.G. Ready to Rule on the Silver Screen? A Podcast Transcript.

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May 26 2015 9:59 AM

The “Ready for Her Close-Up” Transcript

Read Dahlia Lithwick’s conversation with her guests about the sudden popularity of Supreme Court drama on the silver screen.

The Notorious N.P. and the Notorious R.B.G.

Photo illustration by Slate. Photos by Andrew Cowie/AFP/Getty Images and Gary Hershorn/Reuters.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 18, where Slate’s Dahlia Lithwick chats with her guests about the upcoming films On the Basis of Sex, as well as The Confirmation, and also The Originalist—all which feature the Supreme Court. They also discuss Scalia/Ginsburg, a comic opera set to premiere this summer. Why are there suddenly so many plays and movies about Supreme Court justices? Read on to find out. To learn more about Amicus, click here.

We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Dahlia Lithwick: Welcome to Amicus, Slate’s incredibly high-minded Supreme Court podcast. I am Dahlia Lithwick, Slate’s desperately lowbrow Supreme Court correspondent. And so, this weekan off-week at the court—we thought we would talk about movies and plays and how Supreme Justices are suddenly the subject, weirdly, of both.

Big news this week on the Supreme Court circuit is that Natalie Portman has just been tapped to play Ruth Bader Ginsburg in an upcoming film by director Marielle Heller called On the Basis of Sex, apparently about Ginsburg’s early battles for gender equality in the law.

Just a couple of weeks ago, HBO announced that Wendell Pierce will play Justice Clarence Thomas in Confirmation, a TV movie about his explosive 1991 confirmation battle. Kerry Washington of Scandal will plan Anita Hill.

Meanwhile, in Washington, D.C., a new play by John Strand called The Originalist is dramatizing an imagined relationship between Justice Antonin Scalia and a liberal law clerk, and this summer we’ll see the premiere of Scalia/Ginsburg, a comic opera inspired by the complicated relationship between the court’s two most famous frenemies, Ginsburg and Scalia.

The Natalie Portman film is huge news in SCOTUS-land. The last time a sitting justice was the subject of a big, splashy movie or play was First Monday In October, about a fictionalized first woman on the Supreme Court. That came out in 1981, the year real-life Sandra Day O’Conner became the first woman on the Supreme Court. But in 2015, with a full third of the court being suddenly depicted in movies or plays, can a biopic on Stephen Breyer be far behind?

So, today on the podcast, we are going to try to figure out what to make of this sudden explosion of Supreme Court dramatization, and we have two terrific guests to help guide the way. The first is John Collins. He’s founder and director of the Elevator Repair Service Theater, one of New York’s most highly acclaimed experimental theater companies. Last year John won rave reviews for his production of Arguendo, the script of which reproduced the entirety of an actual oral argument verbatim. So, John, welcome to Amicus.

John Collins: Thank you. This is so exciting for me.

Lithwick: So, let’s talk about—you know, despite the fact that there is legalese and it is often impenetrable, and that I will tell you as somebody who’s often sitting at oral arguments that there are many people sleeping, and they are not always the justices—I just wonder, tell us a little bit about Arguendo and Elevator Repair Service. You are a wonk, right?

Collins: Yeah.

Lithwick: You love the court, and you were determined to do this.

Collins: Yeah, I mean, my hobby of collecting oral argument recordings from, that great website that compiles it all for you, that went way back. It wasn’t anything that I had ever imagined I would make into a play, it was just my little secret obsession. But one of the many cases that I came across was Barnes v. Glen Theater, and it did stand out to me as particularly entertaining. This is a case about a group of erotic dancers in South Bend, Indiana, suing to be able to perform completely nude, so there‘s a kind of absurd theatrical element to this thing from the get-go, you know? It’s about a kind of a theater. It’s about a kind of performance, and there’s this amazing clash between the austerity and seriousness of the court and the absurdity of the case, because it forced them to discuss whether or not pasties and G-strings infringed upon your constitutional right to free speech.

So, of course that led to a lot of amazing hypotheticals, like Justice Kennedy’s “adults-only” carwash hypothetical and other good ones. I always wondered whether or not that humor and those crazy hypotheticals would actually create a kind of bridge to a lay audience, that it would be a way in to understanding the way the court works and thinks, and the way it thinks out loud in oral argument. I suspected that might make for good theater in this case.

Lithwick: So, let’s listen for one second to some of Arguendo, just so folks at home can hear how you took verbatim the transcript of an oral argument that was indeed about go-go dancers, and you turned it into live theater. Let’s have a listen.

Justice Kennedy: Suppose someone wanted to increase business at a carwash or in a bar, and they hired a woman, and now you sit in this glass case—and this is an “adults-only” car wash—you sit in this glass case and attract the customers. Is that permitted?

Male Voice: Justice Kennedy, I think it would—if it was intended as expressive activity, if it was performance dance—

Justice Kennedy: No, just what I said. The employer says, this is a job, you sit up there.

Male Voice: I think that that would trigger First Amendment analysis. Whether the state could ban it or not would depend on the state’s justifications.

Justice Kennedy: Well, suppose you said, “I’ve heard the arguments in the Supreme Court and you have to dance,” and she said, “I can’t dance,” and he said, “Well, just wander around when the music starts to play”?

Male Voice: Well, Your Honor—

Justice Kennedy: I mean, there’s a point in this question, what is performance dance? What is it?

Lithwick: So, my first question, do you know the entire transcript of Barnes v. Glen Theater by heart?

Collins: I know a lot of it, I think.

Lithwick: My other question is, what is it that you were trying to communicate? I mean, this was the transcript you had, but the message here is that the justices are nutty and these hypotheticals that they spin out are just them kind of off their medications? Or was it something—what is it that this says to you that makes this case so interesting?

Collins: Well, the hypotheticals themselves in this case are pretty entertaining to listen to, just because of where they have to go to develop this logic about nude dancing and nudity versus pasties and G-strings. But I love the hypotheticals as a part of their whole process because they’re so helpful. They are actually instructive, and they are a window into the way the justices think. They require some real creativity sometimes, and they may reveal things about the justices themselves. Who knows? But really, that’s the window into the thinking, and it’s one of the ways the justices themselves open things up to the layperson.

Lithwick: I love that. I love that not only does it kind of help probe on the doctrine side, but it does, it’s a way of revealing their own anxieties and what their own lives look like. I mean, Justice Kennedy and the naked carwash are indelibly etched in my head now and I will probably never recover.

Collins: It‘s a time, too, where—we always get a big laugh there in that part of the show when Ben says, “And this is an ‘adults-only’ carwash.” But I always enjoyed telling people after the show that they got a big laugh in the courtroom on that, too.

Lithwick: So, tell us a little bit about the challenge of taking a pretty dry, doctrinal First Amendment question and turning it into accessible theater that bridges the gap between the U.S. Supreme Court and the rest of us.

Collins: Well, I think when we first started to work on it, we presented a heavily edited version, and I was a little bit nervous about taking on every word of the argument because it‘s coded, you know? You say “Renton” and that means something—this is another case that has some precedential value and relevance to this one—and everybody in the court knows what that means, but I didn’t think my audience would. So I edited it a lot at first.

But you know, eventually I wanted the audience to have the same experience that I have as a layperson, as a non-lawyer who loves to listen to oral argument. You do go underwater sometimes when you‘re listening to it, but I had a kind of faith that—especially in Barnes v. Glen Theater—the way it keeps coming back around to really fundamental questions of: What is speech? Is dance speech? Is nudity speech?  

And so, one thing that we did, you know, that my actors did, was we spent time in our rehearsals just studying those cases and really trying to understand for ourselves everything that was being said, so that even if our audience didn’t follow every word of it, I felt like if the actors knew what they were talking about then it would communicate that clarity on another level.

Lithwick: John, because this is the decidedly low-brow Amicus, I want to go back to nudity, if I may. And I want to play a clip from The People v. Larry Flynt, one of the all-time great Supreme Court scenes rendered in movies. Here is Ed Norton playing Alan Isaacman. He’s Larry Flynt’s lawyer, and he’s in a back-and-forth with Justice Antonin Scalia in a verbatim performance of what was in the transcript. Let’s listen.

Alan Isaacman: A political cartoon that’s over 200 years old. It depicts George Washington riding on a donkey being led by a man, and the caption—the caption suggests that this man is leading an ass to Washington.

Antonin Scalia: I can handle that. I think George can handle that, but that’s a far cry from committing incest with your mother in an outhouse. I mean, there’s no line between the two?

Alan Isaacman: No, Justice Scalia, I would say there is no line between the two, because really what you’re talking about is a matter of taste and not law. As you yourself said, I believe, in Pope v. Illinois, it’s useless to argue about taste and even more useless to litigate it. And that is the case here. The jury has already determined for us that this is a matter of taste and not a matter of law, because they have said that there is no libelous speech, that nobody could reasonably believe that Hustler was actually suggesting that Jerry Falwell had sex with his mother.

Lithwick: So, again, it’s fascinating to me the extent to which sex becomes a doorway into making the court comprehensible. I think that clip does such a nice job of, there was outright laughter in the courtroom, Justice Scalia merrily joins in, and it’s fascinating to me. I wonder if that is part of what you were thinking in choosing this case, that, you know, at the end of the day there’s something very, very profound about the tension between just talking about gross cartoons and, you know, explicit sexual dancing, and the loftiness, marble, God-like palace that is our Supreme Court.

Collins: Yeah, I think that is part of what we were interested in taking on, this case. You know, there’s such a stark contrast. You’ve got such low-, low-, low-brow and such high high-brow. You know, a culture clash like that is going to be revealing. That’s one thing that I’ve always been interested in theatrically. I like to throw things together onstage that don’t belong together, and the court did that for me in Barnes v. Glen Theater.

Lithwick: I think I want to ask this last question because it’s the one that been spinning through my head as I’ve thought about, you know, there’s going to be a new Clarence Thomas movie, there’s going to be a new Ruth Bader Ginsburg, and that is, is the court translatable? Or is this just going to be, you know, kind of a cute life story? Or is this really an opportunity to drill down and say, this is what it looks like, and it’s not, you know, ER. It‘s a really different institution. Do you feel like you succeeded in Arguendo in “translating,” if I can use that word, the work of the court to lay listeners?

Collins: Well, I hope so. I mean, I do really hope so, and I think that there is a kind of collective need for it to be translatable because people understand on some level how important the court’s work is and its impact. But it is shrouded in secrecy, and the cases and most of the arguments are very technical and impenetrable, and so I hope more artists and writers and producers do take it on.

Lithwick: I think you’ve just hit on the paradox that I’ve been trying to noodle, which is you have this institution that relies heavily on costumes and red curtains, and yet it’s impossible to turn it into theater. I mean, you’ve done it, but it is sort of interesting—

Collins: But it resists it, yeah.

Lithwick: It resists it, and it’s interesting, because if you think about how theatrical it is to sit in that chamber and see them pop out from behind this curtain as though it’s kind of a puppet show, it’s really fascinating that it requires a certain theatricality in order to be legitimate, and yet as you say completely resists theatricality in a different way.

Collins: Yeah, it’s a kind of solemnity in their theatricality, and you know from being in that room it’s very—the air is electric, you know? You’ve got all of these guards walking around telling you to sit up straight and be quiet. It’s a special place and it’s a special live event, the oral argument is.

Lithwick: John, I want to thank you so much for joining us today. John Collins is the director of the New York-based Elevator Repair Service. Their new play, The Sound and the Fury, opens this week at the Public Theater in New York. There are not many tickets left, so run, don’t walk, to the box office. John, thank you so very much for joining us this week.

Collins: Thank you. This was a thrill.

Lithwick: Our next guest today is Thane Rosenbaum. He’s an essayist, novelist, and law professor who also directs the Forum on Law, Culture & Society at NYU Law School. And we wanted him on the show on this topic because he thinks about the intersection of law and culture and mass media more than most people do. So, first of all, Thane, welcome to Amicus. We’re delighted to have you.

Thane Rosenbaum: Very grateful to be on the program with you, Dahlia.

Lithwick: And I think we just want to start with this basic question, which is, we have the most singularly important institution in America, the U.S. Supreme Court. It‘s been around for a long time. When you look at the list of movies, even books, and certainly TV shows that try to capture what happens inside this building, that list is very short.

Rosenbaum:  Rare indeed to see a feature film about the Supreme Court.

Lithwick: And I guess the question is, why? Why have we utterly failed to capture this one branch of government that is so consequential on film, or in plays, or on television?

Rosenbaum: Well, mostly because what happens—the business of the Supreme Court is really very undramatic. You know, we know even from going back to Oedipus Rex and the Oresteia Trilogy from Aeschylus, there is natural drama in a trial. Two parties pitted against each other, each represented by counsel, an authority, a judge who renders an ultimate opinion, the public serving the role as a juror as well as those sitting in the gallery. These things are very powerful, very emotional, and very accessible to people who didn’t go to law school and who are not members of the legal profession.

Unfortunately, the Supreme Court is the very opposite. It deals in very technical aspects of the law. As we know, the biggest work of the Supreme Court is really done not—it’s off the bench, with the reading of briefs and memo bench opinions and memos from their clerks—and you don’t really have two dueling attorneys in the same way pacing around the courtroom like gladiators trying to appeal and advocate on behalf of their clients to jurors, who are just simply members of the public.

Instead, you have nine very specialized, very elite members of the legal profession who speak the law—the language of the law—where the facts are really not all that important, but instead the technical nuances and legalistic principles of the law is what’s being discussed before the court.

Lithwick: And yet this month we look around and suddenly Natalie Portman is going to play Ruth Bader Ginsburg, and we have a movie in production about Clarence Thomas and Anita Hill, we have a play about Antonin Scalia, The Originalist, and we have an opera about Scalia and Ginsburg. So, is this some kind of outlier moment? Are we in a moment in history where suddenly everybody’s looking at the justices and at the court? Or has this always happened? Have individual justices somehow captured public attention?

Rosenbaum: Well, it’s a good question, Dahlia. First of all, there was a Lawrence Fishburne play in 2011 that HBO filmed, but it was a one-person play, of Thurgood Marshall, and that’s to me the closet analogue to what we’re seeing now. But again, it was a one-person play that was ultimately filmed, and what Thurgood Marshall and Justice Ginsburg have in common is that they were crusading attorneys first on behalf of a certain group of people, a disenfranchised or discriminated group. Whether it’s civil rights America and Thurgood Marshall’s work on behalf of the Legal Defense Fund of the NAACP, or Justice Ginsburg’s work with the ACLU on behalf of women. So, crusading attorneys who end up on the Supreme Court make for dramatic characters.

Lithwick: And yet, it’s funny to me, Thane, because I think about on this show the justices we talk about all the time, and they’re not Scalia and Ginsburg, right? It‘s Justice Kennedy. So, it’s interesting to me that the sort of smaller-than-life justices are the ones, in some sense, who are the engine of what is kind of the drama of the court if you look at the court not from a cultural perspective. But then when you look at the court as a matter of theater, the folks who are getting an enormous amount of attention are not the ones necessarily who are making an enormous difference on the bench.

Rosenbaum: Right. I mean, it’s interesting but it’s emblematic of what the law is, and one of the reasons—the difference between law and culture and literature. A number of years ago, I did an essay for the New York Times about the difference between a lawyer’s writing life and the writer’s life, and the difference is that the world of the law is based on, you know, technical compliance, narrowing the scope of issues. Everything is about narrowing.

And novelists, playwrights, and film directors are about expanding the human drama, you know, opening up the canvas, looking at much deeper levels of emotional complexity. That doesn’t happen in the law. It’s only when the law can be opened is when it becomes dramatic. That’s when it becomes interesting to civilians, when you can see the humanity behind the people who make these decisions, because they have themselves compelling life stories.

You know, that’s sort of the irony, Dahlia, when President Obama first appointed Sonia Sotomayor. Remember, he said something that became very controversial. He said, She has a compelling life story and therefore she would show empathy. And this became a huge issue—

Lithwick: I remember.

Rosenbaum: Among Republicans.

Lithwick: I remember.

Rosenbaum: This is not the basis of a judicial appointment. This is, you know, ridiculous for him to invoke the words “empathy” or “compelling life story.” It‘s about your ability to judge. Now, you know, for people like you and me, we understand this is absurd, because we want our judges to be human. We don’t want them to be robed robots. We want them to have histories that will inform the decisions of the Supreme Court.

Hey, I’ve always thought there should be a novelist on the Supreme Court, and I mean that, precisely because the novelist is the person who spends a lot of his or her day thinking about the human drama and emotional complexity.

Lithwick: It strikes me listening to you that one thing we should do from our Amicus assignment desk is tell some law student to write an opera about Anthony Kennedy. It practically writes itself, I think, and certainly I think Justice Kennedy would love it.

Rosenbaum: Yeah.

Lithwick: Harder to write an opera about Stephen Breyer, but that can be Amicus’ assignment desk for next year. I want to flip the question a little bit, Thane, because we’ve been talking a lot about how popular culture penetrates the court. I want to think about how the justices interact with popular culture, and I think that we probably both agree that the justices have a vested interest in not being individuals, in not singling themselves out. They want to present themselves as nine brains in vats who are neutral arbiters, and balls and strikes all the way down. And I’m thinking now of how the transcripts used to come out, and just they didn’t identify individual justices. They would say, “The court asks the question,” because the justices had a vested interest in kind of institutionally saying, “We are not nine individuals. We are the court.”

And yet the justices do step out of that role of empire, and get involved, and mix it up a little. And in researching this show, I found this amazing moment, amazing, of Justice Harry Blackmun portraying Justice Joseph Story in the movie Amistad in 1997, Stephen Spielberg’s movie. And here’s this moment when an actual Supreme Court justice plays another actual Supreme Court justice. Let’s play it, because it kind of gives me chills.

Male Voice: In the case of the United States of America v. the Amistad Africans, it is the opinion of this court that our treaty of 1795 with Spain on which the prosecution has primarily based its arguments is inapplicable. While it is clearly stipulated in Article 9 that—and I quote—“Seized ships and cargo are to be returned entirely to their proprietary”—end of quote—it has not been shown to the court’s satisfaction that these particular Africans fit that description.

We are then left with the alternative, that they are not slaves and therefore cannot be considered merchandise, but are rather free individuals with certain legal and moral rights, including the right to engage in insurrection against those who would deny them their freedom.

Lithwick: So, Thane, that seems like to me a unique moment in the intersection of the Supreme Court and popular culture. Tell me a little bit about what you think when you hear that.

Rosenbaum: Well, first of all, you and I know—we’ve talked about this before—it‘s a chilling scene, especially if you realize that’s a presently sitting Supreme Court justice playing the role of a prior Supreme Court—like, among the early Supreme Court justices. I don‘t know how many people realize that that was a Supreme Court justice who was playing the role of a Supreme Court justice, but I will say it’s the only scene of its kind. The only thing that’s close to that is Judgment at Nuremberg, but in that case Spencer Tracy is actually playing a federal district judge who gets shipped off to Nuremberg to play the role of one of the judges in the cases against the judges and lawyers and attorney general of Germany. And he then has a very similar experience where he’s reading the opinion of the court in a very dramatic way. Those are the only two movies that I know of where you see the idea of a Supreme Court justice rendering an opinion to the public.

And remember, as you and I know, that‘s generally not what happens, right? They go back and then they deliberate. In this case they do the same thing that you get in a trial. You get the equivalent of—at the end of it, the judge just somehow issues, miraculously, a well-crafted opinion.

I was thinking about something you said earlier, Dahlia, about justices are invested in not being private, solo individuals, but there are some examples that make for very dramatic moments that might have made good television drama or film. I’m thinking of former Supreme Court Chief Justice Rehnquist. I can’t remember the case—you’ll probably remember—it had something to do with the Family Leave Act—

Lithwick: Right, the Family Medical Leave Act, yep.

Rosenbaum: There you go. And I forgot the name of the case, but it was sort of fascinating because he, during oral argument and in his opinion, ruled in favor of working mothers, and that they should be entitled—I forgot what the nature of the case was—but to expand the entitlement to payments to working mothers for family leave. And everyone—you know, conservatives wondered, How is that possible? Why would a guy like Rehnquist want to expand this government program to single women?

And what he didn’t say but people know is that his daughter was going through a divorce, and was separated from her husband, and she herself was a high-powered lawyer in Washington, and she had to call upon the chief justice of the Supreme Court to go pick up her daughters every day after school for a while. And Grandpa Rehnquist, not Chief Justice Rehnquist, but Grandpa Rehnquist understood the burdens of women who go through divorce and still have to work, and how are they supposed to handle child care?

And the humanity of his own experience, his own daughter’s experience, humanized that and turned what might have otherwise been a stodgy, opaque, incredibly boring opinion into something that had real life to it, because he understood the consequences of women who are separated from husbands

Lithwick: Thane, I would love to hear your thoughts on why it matters that we’re about to have a Ruth Bader Ginsburg movie starring Natalie Portman, and why it matters that we’re going to watch, this summer, plays about Justice Scalia, and originalism, and Justice Ginsburg. Why does it matter to us as a society to have access to these movies about justices and the Supreme Court?

Rosenbaum: The reason is matters is because artists see the world in a very different way than everyone else, and it’s important when the artist points a lens at the law. They tend to look at things that we would otherwise miss or ignore. And one of those things is the human dimension or questions about morality, what the difference is between what is legally correct and what morally feels right. And so the artist always looks at these moral questions, always looks at these questions of the human drama that the law itself always ignores. It’s certainly not something that is taught in law school that is ever really openly spoken of among lawyers.

And then the other idea—which is why these depictions matter—is because they oftentimes express a longing of individuals, of what they want their lawyers to be. And that’s actually the reason why you’re seeing the Ginsburg film and that’s why we’ve seen Thurgood Marshall, because it’s aspirational. When we see these cultural depictions, it taps into a kind of human longing for a legal system that would treat us in a different way, or lawyers who would represent us as real individuals and people.

And the humanizing of the experiences of, say, a Ginsburg is going to be incredibly popular for people because they want to see: What were the experiences that led this woman to ultimately sit on the Supreme Court? Because that‘s the kind of lawyer we want to represent us. And I think it’s that aspirational idea, it’s that impulse and desire, the human longing for a legal system that understands us as individuals and people that makes these movies important.

Lithwick: So, that’s a perfect segue, Thane, to my question, because you have had the opportunity as part of the Forum on Law, Culture & Society to be able to sit down with two sitting justices and talk about their favorite films—with Sonia Sotomayor, who said that hers was 12 Angry Men, and then with Justice Stephen Breyer, whose favorite film is The Man Who Shot Liberty Valance. And so, I wonder if, is this a way of them signaling to the world that they are real people because they watch movies? And what deeper thing did they tell you about these films?

Rosenbaum: That’s a good question. You know, in all instances for the FOLCS Film Festival that we run for the Forum on Law, Culture & Society, I usually pick the films and I pick the guests somewhat around the idea of the film. When it comes to Supreme Court justices, I let the Supreme Court justice pick the film. “This is your call.” And Sotomayor picked 12 Angry Men, and the way we do it is, the audience sits and watches the movie with the Supreme Court justice, and then the lights come on and the Supreme Court justice and I take the stage, and we talk about why the film was important, and more importantly: Why is it important to the justice?

And Sotomayor said some very interesting things about 12 Angry Men. First of all, she said, it was the film that a boyfriend in high school wanted to see, 12 Angry Men, and when she saw the movie she knew then that she wanted to be a lawyer. I mean, it had that kind of—at the time, remember, this is a young girl who grew up in a housing project in the Bronx, a young Puerto Rican girl. Remember also, the movie is about the prosecution of a young Puerto Rican boy for having killed his father. The boy is barely in the movie. You just see his very fearful face at the end before the jurors go off into the jury room to deliberate.

And so, it’s a very powerful film, and as everyone knows is an iconic film by Sidney Lumet. But you can imagine what it was for a young Latina, a budding wise Latina, to see the power of what it means to have 12 individuals stand in judgment over someone who is from an otherwise discriminated, persecuted class.

I also think it’s important to remember, 12 Angry Men has no scene in the actual courtroom. It‘s only about the jury room. So, you’d say, why is it so important to her? What’s dramatic is the 12 non-lawyers, the angry men, and what are they angry about? They’re angry about the facts of the case, and about their own prejudices, and about their own human failures and their own human experiences that brought them to the courtroom. And that Sotomayor picked that idea up, that she understands the humanity that’s on display both in trials and in jury rooms—it’s not like she said, “I watched episodes of Perry Mason and I thought that was cool.” She said, “I think it’s really interesting to watch civilians, laypersons serving in that role.” I think it’s incredibly interesting that that meant something to her, because it’s not what’s the drama of 12 angry men, is the human emotion in the jury. It has nothing to do with what’s happening in the courtroom.

Lithwick: Let’s stop for a minute and listen to a tiny little bit of 12 Angry Men.

Male Voice: I vote not guilty.

Group: Oh! What!

Male Voice: What are you talking about? I mean, we’re all going crazy in here or something. The kid is guilty. Why don’t you listen to the facts?

Male Voice: Tell him, would you?

Male Voice: This is getting to be a joke.

Male Voice: The vote is 8 to 4 in favor of guilty.

Male Voice: I mean, what is this? Love Your Underprivileged Brother Week or something?

Rosenbaum: I don’t know if you want to talk about this, but Breyer’s decision to do The Man Who Shot Liberty Valance was equally powerful. He didn’t explain why he wanted to talk about the film, but he wanted to explain why the film was important. And one of the things, since the film is really about frontier justice, where the law doesn’t really exist, he said—you know, and that the only law that exists is the law of the gun—Justice Breyer of the Supreme Court, who is perceived to be on the left, took an extraordinary position. He said, “You know, this movie teaches us that sometimes you just have to stop talking, because the only thing that will work is force.”

Lithwick: [laughs]

Rosenbaum: Who knew? He says, “When it came to civil rights, you know what you needed to do? Send in the National Guard.” He says this. He says, “We like to spend our time talking about how debating and legislation and bringing up arguments is going to win the day, but sometimes you need to bring in a big gun.” And that was an astonishing moment for everyone in the room. You didn’t think that he was—you know, he’s not a pro-Second Amendment absolutist, but he is pointing out that sometimes justice has to prevail in some way, and if it’s not working through the law, it has to be extrajudicial. It has to come from the world of frontier justice or taking matters into your own hands, and it was really amazing moment because he was acknowledging, here’s why this film appeals to us. You know, that Liberty Valance essentially deserved to be shot.

Lithwick: Thane, I think there is no better way to wrap up a podcast on the intersection between the Supreme Court and popular culture than the mental image of Justice Stephen Breyer riding off into the sunset with a pistol in each hand. You’ve just made my whole day! Thane Rosenbaum is an essayist, he’s a law professor, and he directs the Forum on Law, Culture & Society at NYU Law School. Thane, thank you for joining us.

Rosenbaum: Thank you, Dahlia.

Lithwick: And that’s going to do it for today’s very low-brow edition of Amicus. As always, we would love to hear your feedback. You can send us email at We love your letters. Or you can always leave a review on our iTunes page to help the uninitiated discover what they’ve been missing. Just search “Amicus” in the iTunes Store and click the “ratings and reviews” tab. We really appreciate your support. Thanks to the Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field, our managing producer is Joel Meyer, and Andy Bowers is our executive producer. Amicus is part of the Panoply network. Check out our entire roster of podcasts at I’m Dahlia Lithwick, and we’ll be back with you soon for another edition of Amicus.