Deadlocked: How America Shaped the Supreme Court examines the people, decisions and confirmation battles that have shaped the Court into what it is today. The Showtime premiere came a few months after the one-year anniversary of Dobbs v. Jackson Women’s Health Organization (2022) overturned Roe v. Wade (1973).

I regret that Deadlocked never came up on my radar in 2023 or 2024. The Jewish holidays segued into October 7 and had I found out back then, my focus and headspace would have been off. I only found out about it while searching online for Supreme Court documentaries the other day. Having watched some of Dawn Porter’s previous work–including Bobby Kennedy for President, John Lewis: Good Trouble, and The Way I See It–it was inevitable that I would eventually watch this four-part documentary series. Anyway, I like that Porter brings a balanced approach with interviewees from both sides of the political aisle.

There are nine unelected Justices of the Supreme Court. They have the final say on all issues that have an impact on both our democracy and daily lives. They have a say in our right to privacy and our access to the ballot, amongst many other issues. Some are originalists. Others view the Constitution as a living document. These views are those that guide justices on how they view and later decide on case.

Despite requests to participate, Supreme Court justices declined to be interviewed in Deadlocked. All of their appearances are strictly through archival footage only, including the montages that open up the documentary series. It would have been nice to see some of the recently retired Supreme Court justices open up on camera but oh, well. Regardless, it was rather insightful watching the Court transition from Warren to Burger to Rehnquist to Roberts. The other thing, of course, is how the historically apolitical court has become so politicized.

“The United States Supreme Court is one of the most powerful institutions in the world, determining the rights we all rely on. In this series, I wanted to explore the history that led us to this moment where we have a Court issuing rulings in a manner that appears more ideological than legally sound,” said Porter, in a press release promoting the show. “Whether they are ignoring precedent, cherry picking history to overrule long-standing precedent or deciding an unprecedented number of cases on the emergency docket without opinion, this Court is unlike any from the modern era.”

The four-part Deadlocked: How America Shaped the Supreme Court is loosely based on The Supermajority: How the Supreme Court Divided America by Michael Waldman.

Deadlocked: How America Shaped the Supreme Court is essential to understanding how we got to where we are today and why.

The Hearts of Men Can Be Changed

Porter traces the Supreme Court’s modern history back to the appointment of Earl Warren as the 14th Chief Justice of the United States. Warren was the last chief justice holding elective office prior to his appointment. But before then, you have to go back to the Dred Scott decision in 1857, a few years before the Civil War. The case would ultimately be overruled by the 14th Amendment. In the 1930s, the Court would rule on cases relating to segregation. All that sets the tone for Warren’s appointment. Jeffrey Rosen notes how Warren “expressed contrition” for allowing the Japanese internment in California.

Despite coming from different backgrounds, Warren and Thurgood Marshall viewed the law as a means to change. They came from very different backgrounds and yet, both were influential for their contributions to Civil Rights, either as a member of the Court or arguing in a case. Warren’s appointment came before the Court had ruled on Brown v. Board of Education (1954). In fact, the Court initially heard the case when Fred M. Vinson was still Chief Justice. When the court ruled, the decision was unanimous and overturned Plessy vs. Ferguson (1896). What followed was Arkansas officials defying court orders and closing public schools.

The Court sided with Thurgood Marshall almost as many times as he argued before the Court. After John F. Kennedy was elected president, he appointed Thurgood Marshall to the United States Court of Appeals for the Second Circuit. As you can imagine, the Senate refused to act on his nomination so President Kennedy had to give him a recess appointment. It would take nearly a year before the Senate voted to confirm his appointment.

President Lyndon Baines Johnson wanted to appoint close advisor Abe Fortas to the Court. However, there wasn’t a vacancy and he had to persuade Associate Justice Arthur Goldberg to replace the late Adlai Stevenson as the next US ambassador to the UN. LBJ also named Thurgood Marshall as Solicitor General, paving the way for his groundbreaking appointment to the Supreme Court in 1967 when Justice Tom Clark resigned.

In deciding on Loving v. Virgina (1967), the Court struck down Virginia’s Racial Integrity Act because it was designed to “maintain white supremacy. Other cases that the first episode discusses are Mapp v. Ohio (1961) and Engel v. Vitale (1962). As the first episode comes to an end, the Vietnam War forces LBJ to not run for re-election. Crime rates and urban violence were high. Justice Warren stepped down in 1973, allowing President Richard Nixon to choose the next Chief Justice. LBJ had eyed Abe Fortas as Warren’s replacement when he initially planned to retire in 1968. Nixon nominated conservative federal appellate judge Warren E. Burger to replace him.

A Conservative Revolution

The second episode of Deadlocked starts out with the overturning of Roe v. Wade (1973). It speaks to just how political that the Court has come in recent years. But before we get to this point, Porter takes us back to 1969.

Nixon had campaigned with the Supreme Court being one of his issues. One of his first decisions was to appoint the conservative Burger. What was surprising about the Burger Court delivered liberal decisions. Nixon appointed Harry Blackman (1970), Lewis F. Powell Jr. (1971), and William Rehnquist (1971) to the Court. Something that came to light during William Rehnquist’s confirmation hearing was a memo arguing Plessy v. Ferguson (1896) should be re-affirmed. Rehnquist wrote the memo while clerking for Justice Robert Jackson.

Privacy rights were a big factor in the decision on Roe v. Wade (1973). The 7-2 decision featured three Nixon appointees voting with the majority. Five of the seven had been Republican appointees. Only White and Rehnquist dissented. Women had more rights during colonial times than they did going into the late 1960s!

Burger wrote the majority opinion in United States vs. Nixon (1974). The case rejected Nixon’s invocation of executive privilege, leading to Nixon’s resignation. Enter Gerald Ford and he nominated John Paul Stevens to the Court. Stevens served on the Court until his retirement in 2010.

The New Right started to build up its forces during the 1980s. Deadlocked points how Catholics and Evangelicals organized to fight back against gay rights and abortion rights. Rev. Jerry Falwell starts advocating against Roe. v. Wade (1973). Interestingly, Ronald Reagan launched his presidential campaign at the Neshoba County Fair in Mississippi–the same county that once played host to the abductions (and murders) of James Chaney, Andrew Goodman, and Michael Schwerner.

Prior to the appointment of Sandra Day O’Connor, 101 men had sat on the Court. It took 45 years before the first Catholic (Roger Taney), 126 for the first Jew (Louis D. Brandeis), and 177 years for the first Black man. Connor’ confirmation to the Court made her the first woman in its 191-year history.

Those applying originalism in their Court opinions subscribe to original public meaning. What this means is that they view the words as they were fixed upon its ratification. How did the original ratifiers view such words? Others view the document as a living document. William Brennan Jr. responded to Reagan’s opinion on the Constitution as “arrogant.” The Warren and Burger Courts were liberal in their views. Organizations like The Federalist Society were opposed to such views. They were founded by law students who felt their views were being ignored.

Burger’s resignation led to Rehnquist’s ascension to Chief Justice. Antonin Scalia replaced Rehnquist as an Associate Justice. Scalia had been a faculty advisor to The Federalist Society. He gave them legitimacy by bringing on their members as clerks. Robert Bork was later nominated. His nomination was infamously rejected during a Senate confirmation hearing. He dismissed Roe v. Wade (1973). Mitch McConnell viewed Bork’s nomination as the first time a nomination was borked. Reagan subsequently nominated Anthony Kennedy. President George H.W. Bush appointed David Souter to replace Brennan Jr.

Thurgood Marshall announced his resignation in 1991. President George H.W. Bush replaced him with Clarence Thomas. Kevin M. Kruse notes that they leaned on his personal story rather than his qualifications. Thomas was grilled about a woman’s right to choose. He responded that he believes “the Constitution protects the right to privacy.” The Anita Hill allegations surfaced shortly before the vote. After her testimony, he described it as a “lynching.” His confirmation barely survived a 52-48 vote.

Planned Parenthood vs. Casey (1992) looked as if it would overturn Roe v. Wade (1973). Three Reagan or Bush appointees were viewed as betraying the pro-forced birth movement.

The Rule of Five

When Bill Clinton came around, he didn’t expect to make any Supreme Court nominations. His first appointee was Ruth Bader Ginsburg, who became the first Jewish woman on the Supreme Court. Ginsburg, a moderate, was 60 years old at the time of her nomination. Clinton’s next appointee was Stephen Breyer. And with that, it becomes a question of how will a case turn out? It became something of a moderate Court in terms of decisions. Decisions moved the Court more or less in a conservative direction.

The 2000 election went all the way to the Supreme Court because of the Florida recounts. In bringing Bush v. Gore (2000) to the Court, the Bush campaign wanted to stop the recount. A twist to this case is that three Republican attorneys arguing that the Supreme Court should stop the count would be future members of the Court: John Roberts, Brett Kavanaugh, and Amy Coney Barrett. Neither of their names appeared the briefs per Theodore Olson. Ultimately, the 5-4 decision sided with the Bush campaign. Justice John Paul Stevens wrote a dissenting opinion. The Court wrote in its decision:

“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

Justices Kennedy and Thomas defended the decision during a House Appropriations subcommittee hearing in 2001. The hearing was related to the budget.

They heard Lawrence vs. Texas (2003), a case regarding gay rights and privacy arguments. The Court’s decision overturned Bowers vs. Hardwick (1986). When 2004 came around, a few things happened. Justice Sandra Day O’Connor announces her retirement and then Chief Justice William Rehnquist died of cancer. President George W. Bush quickly changed his nomination of John Roberts from Associate Justice to Chief Justice. A long-buried memo on the Voting Rights Act in the Reagan archives came back to bite him in the tuchas. It didn’t stop his 2005 confirmation from making him the 17th Chief Justice in the Court’s history.

District of Columbia v. Heller (2008) dealt with the 2nd Amendment. Justice Stevens got to work on writing a dissenting opinion before the 5-4 opinion was issued in favor of gun rights activists.

President Barack Obama nominated Justice Sonia Sotomayor to replace Justice Souter. He followed this up by nominating Elana Kagan. By the time of Obama’s presidency, the nomination process had become politicized. The Roberts Court, at this point, could have been described as center-right. Obergefell v. Hodges (2015) was a landmark case, overturning Baker and requiring that states issue marriage licenses to same-sex couples and recognize same-sex marriages.

The Voting Rights Act of 1965 had been reauthorized in 2006. Attorneys felt that if Section 5 was not reauthorized, states would attempt to undermine the rights of Black voters. Shelby County v. Holder (2013) decided 5-4 that Section 4(b) was unconstitutional because it used older data. The Court didn’t touch Section 5 but without Section 4(b), no jurisdiction is subject to the preclearance. In essence, it impacted minority voters.

Crisis of Legitimacy

The Court is viewed as apolitical but there’s a growing skepticism about the Court’s legitimacy. How do we trust the Court to protect vulnerable people in the political process when conservatives hold a 6-3 majority? One of the biggest travesties in recent years was that Republican senators didn’t give Merrick Garland’s nomination the time of day, opting to wait until a Republican president could nominate a replacement for Justice Antonin Scalia. That’s where we were when Deadlocked started its fourth and final episode.

Had President Obama been allowed a nomination, it would have transformed the Court. Scalia died in February 2016, eleven months before the next presidential inauguration! Again, it speaks to how political the process has become. It didn’t matter that Merrick Garland was a moderate. He didn’t get a single hearing. The irony of it all is that while Sen. Mitch McConnell refused to consider a hearing, the same couldn’t be said of Ruth Bader Ginsburg’s death in 2020. When Justice Ginsburg died in September 2020, the Republicans speedily confirmed Amy Coney Barrett as her replacement rather than wait until after the next election. Where’s the justice in that?

When the convicted felon got his chance to replace the late Justice Scalia, he turned to The Federalist Society for a list of people to appoint. Sen. McConnell worked hand in hand to pack the courts with conservative justices. We’ll see what, if any, impact they have during the current term as the White House walks over the U.S. Constitution.

The Senate got rid of the filibuster for nominating lower court appointees in the early 2010s. It forced a supermajority to nominate someone. The Supreme Court nominations simply needed a majority vote in 2017. Justice Kennedy’s retirement gave the convicted felon another nomination in 2018. This allowed Brett Kavanaugh to get his day in the sun.

The Covid-19 pandemic led to multiple lawsuits, especially on the grounds of religious liberties. They were intervening at the preliminary stages in Covid cases but didn’t do the same for cases relating to abortion rights. Roberts joined liberal justices in their dissent of cases regarding abortion rights. In late 2021, the Court heard arguments for Dobbs v. Jackson Women’s Health Organization (2022). It’s this ruling that led so many of us to lose our faith in the Supreme Court to do its job. But anyway, a draft of Justice Alito’s opinion had been leaked.

Deadlocked doesn’t delve much into Justice Ketanji Brown Jackson’s historic confirmation, let alone her hearing. The documentary series postscript states that the 6-3 conservative majority struck down President Biden’s student loan forgiveness plan and ruled in favor of a conservative Christian business owner who refused to design websites for same-sex weddings. The Court also ended affirmative action in college admissions, reversing more than 40 years of precedent. This takes us to where we are today–not being able to really trust a Court when the White House is walking all over American democracy.

DIRECTOR: Dawn Porter
EXECUTIVE PRODUCERS: Dawn Porter, Eli Holzman, Vinnie Malhotra and Aaron Saidman
FEATURING: Michelle Adams, Ruth Marcus, Kate Shaw, Erwin Chemerinsky, Kevin M. Kruse, Laura Kalman, Jeffrey Rosen, Franita Tolson, Linda Greenhouse, Stephen Vladek, Spencer R. Crew, John W. Marshall, Sherrilyn Ifill, Geoffrey R. Stone, Melissa Murray, Christina Swarns, Judge Thomas B. Griffith, Justin Driver, Donald B. Ayer, Mary Ziegler, Dahlia Lithwick, Randall Balmer, Amanda Hollis-Brusky, Theodore B. Olson, Alan Jenkins, John Bash, Judge Nancy Gertner, Paul M. Smith

Deadlocked: How America Shaped the Supreme Court aired four weekly episodes on Showtime beginning on September 22, 2023. All episodes are currently streaming on Paramount+ with Showtime. Grade: 4/5

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