By Jesse Naranjo

With help from Ella Creamer, Rishika Dugyala and Teresa Wiltz

POLITICO illustration/Photo by Getty Images for Paramount+

What’s up, Recasters! A federal grand jury indicts New Jersey Democratic Sen. Bob Menendez and his wife on bribery charges, the United Auto Workers union expands its ongoing labor strike and Congress continues its efforts to try to fund the government ahead of a looming shutdown deadline. Today, we’re talking about how the Supreme Court morphed into its current iteration. 

America’s opinion of the Supreme Court has reached unprecedented depths in the last few years.

Recent decisions such as ruling that the First Amendment gives a business the right to deny services to LGBTQ customers and striking down Roe v. Wade and race-based affirmative action in college admissions have emphasized the strong conservative tilt of its current makeup. And the chaotic confirmation proceedings of recent appointments has spotlighted the increasingly partisan nature of its nomination process.

The court wasn’t always seen as so partisan. One of its most influential chief justices in modern history didn’t even have a confirmation hearing.

The backstory to the current dynamics is laid out in director and producer Dawn Porter’s new docuseries, “Deadlocked: How America Shaped the Supreme Court,” premiering on Showtime tonight and streaming on Paramount+. The four-part series chronicles the key transitions of the modern court, tracing its makeup and rulings from the seminal decisions under Chief Justice Earl Warren in the mid-20th century to its current roster and the striking down of Roe v. Wade.

Porter, whose first career was as an attorney, tells The Recast she started working on the series at a time when she was becoming increasingly concerned about the trajectory of the court’s public perception. Throughout the series, she meticulously details how earlier decisions made by the court, such as Brown v. Board of Education, Loving v. Virginia and Griswold v. Connecticut, contributed to a public backlash that fueled the politicization of judicial nominations, resulting in the conservative domination we see today.

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As Porter notes, while the nomination and confirmation process is inherently political, as justices are nominated by the president and confirmed by the Senate, it wasn’t always so politically fraught. Warren, for example, was appointed on a promise by President Dwight Eisenhower, and didn’t even have a confirmation hearing to be chief justice.

The show draws on recordings of presidential phone conversations and archival footage of confirmation hearings, along with historical analysis from court watchers and legal scholars. The result: a behind-the-scenes look at the machinations behind the nominations of iconic justices such as Thurgood Marshall, the first Black justice. As an NAACP attorney, Marshall argued the Brown v. Board of Ed case, which desegregated schools — earning him the ire of Southern segregationists in the Senate. Porter chronicles the increasing politicization of the process that began to ramp up with Marshall and again with the failed nomination of Judge Robert Bork — and how appointments by Presidents Richard Nixon and Ronald Reagan contributed significantly to the court’s split.

She spoke to The Recast about how the modern court was shaped, whether she sees opportunity for consensus on the bench regarding decisions affecting racial, ethnic and religious minorities — and what she learned about the court in the making of the series.

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This interview has been edited for length and clarity.

THE RECAST: Starting off, can you describe the impetus for this series? Was there a specific reason that you felt that it needed to be made now?

PORTER: We actually started working on the series about three years ago. And my background is, I'm a lawyer. And I just was growing increasingly concerned about the court and about the public's perception of the court, about how decisions were being made, as well as the end result. If you have a decision that stems from a process and a procedure that doesn't seem to be fair, then you don't always get fair results.

And we start with the Warren Court. ... It really was seen as a beacon of protection for minorities and underrepresented folks, and I wanted people to remember this is the court that gave us all those protections and all those rights.

Chief Justice Earl Warren meets with President Lyndon B. Johnson in 1968. | Courtesy of SHOWTIME

THE RECAST: Was there any one change in the court’s makeup that stood out to you the most in terms of impactfulness?

PORTER: I think that there are several really pivotal moments. The first is the election of Richard Nixon. Nixon literally campaigned on remaking the courts and rolling back the clock from all those decisions that I just mentioned. The Warren Court was responsible for desegregating schools, ... for giving us the right to have contraception for married couples, that's the Griswold decision. A lot of it, though, was based on rights for criminal defendants — Miranda warning, the right to an attorney.

So all of these things were getting unpopular as crime was increasing. And Nixon gets four appointments to the Supreme Court. And then of course, we get Ronald Reagan, who also gets four appointments to the Supreme Court. So when people think about whether or not the court is political, well, our system is political. Justices are nominated by the president in power, and they're confirmed by the Senate in power.

THE RECAST: There's a point maybe halfway through this series where it seems to be that politicians are a lot more explicit about the Supreme Court and the political nature of nominations. Why did you see that shift occurring?

PORTER: When I first started this series, I was really interested in the confirmation process, because it's really fascinating to see what's happened over time. I mean, Earl Warren has no confirmation hearing. He's appointed. It's a promise from Eisenhower that Earl Warren — who was the governor of California — [will get] the next Supreme Court [seat].

Solicitor General Thurgood Marshall testifies on his fitness for the Supreme Court posting before the Senate Judiciary Committee, July 18, 1967, in Washington. | AP Photo

Probably some of the most politicized hearings were the hearings for Thurgood Marshall, where you see the Dixie Democrats, the Southern Democrats, trying to scuttle Marshall's nomination, and they get two chances. First when he's nominated to be solicitor general, which is the chief attorney for the United States. And then when he's nominated for the Supreme Court. And they really go after him and politicize that hearing process in ways that it hadn't been before.

But then the second time that you hear the politicization really come into focus is Judge Robert Bork, who's very conservative, and liberal groups kind of unite in opposition to Bork. Mitch McConnell … was very upset about Judge Bork not being confirmed. And we have this footage in the series you can see, McConnell says, “Well, you can get this one,” essentially, but he's going to make sure that the same happens, that he's going to shoot down more liberal nominees. And we see that really specifically in Merrick Garland, when there's 263 days [left] in [Barack] Obama's presidency and Mitch McConnell refuses to even hold a hearing to nominate Merrick Garland.

And yet, just a few years later, when there's 23 days before the election, when early voting is actually happening, he pushes through the confirmation of Amy Coney Barrett, one of the more conservative justices that's currently on this court. So you're seeing this process get more political, but you've also seen since the time of Robert Bork, the justices are not being quite so frank about their opinions.

THE RECAST: One of the first big decisions that the series focuses on, among others, is Brown v. Board of Ed, which was unanimous. Do you think such decisions, especially civil rights-related ones, can be made unanimously like they were then in our lifetime?

PORTER: I'm so disappointed to say I think they would not be. I don't even know that they would be in the majority. And we have evidence of that in these decisions about affirmative action in education that just happened a few weeks ago to having Brown v. Board of Education be a unanimous decision was some of the brilliant work of Justice Warren, and he knew that sending a message that the highest court in the land, and the most powerful Supreme Court in the world, was saying separating by race is impermissible, that intentionally separating and signaling that one race is inferior to the other is not constitutional.

But having that be a unanimous decision was really important. And today, the rhetoric we have does not seem to put that as a primary value. [The justices] all surely would say that they are not discriminating, but you can't look past the impact of their decisions and what it means for minorities. We look at Trump's Muslim ban, for example, which went on emergency application to the Supreme Court; it was upheld by this court.

We look at the affirmative action decision, which is quite clear will result in less access to higher education for minorities. I certainly cannot say that this court is committed to the protection of racial, religious, ethnic minorities.

Demonstrators stand outside of the Supreme Court as it hears arguments on President Donald Trump's ban on travelers from several mostly Muslim countries, April 25, 2018. | Andrew Harnik/AP Photo

THE RECAST: Do you think that the justices have the capacity now, with the current makeup of the court, of winning each other over on arguments?

PORTER: Yeah, I think they do. We have some justices who famously changed their minds. Justice [Anthony] Kennedy famously changes his mind about abortion and decides to uphold it. We've had justices change their minds about protections for gay marriage and gay rights. And that's an important event in our history. Sometimes they realize that decisions that people have relied on for so many years, overturning them would be disruptive, that the court is mindful that that should only be done in extraordinary circumstances. And sometimes, maybe there's just the realization that the court is losing the battle of public opinion. And so you see Justice [John] Roberts siding with the more liberal justices. I don't know that he's changed his mind. But I think he's thinking about whether the court needs to move so quickly in its race to conservative ideology.

One thing you are seeing is that the justices are in the minority right now, Justice Ketanji Brown Jackson, Justice [Sonia] Sotomayor, Justice [Elena] Kagan, are writing really detailed opinions, kind of making sure that the other opinion preserves the history, and that's part of our system, too. Those justices may not win the day in their arguments today. But that doesn't mean that some later court couldn't take up and read those dissents and get the roadmap to a different outcome.

THE RECAST: Was there anything about the court's history that you learned through this process that you hadn't fully appreciated before?

Brett Kavanaugh is sworn in to testify before the Senate Judiciary Committee, Sept. 27, 2018, on Capitol Hill. | Pool photo by Win McNamee

PORTER: I didn't realize that the Supreme Court does not have a code of ethics. I just assumed that they would. I assumed that you had to have a confirmation hearing. And that's not true. I assumed that you had to have nine justices. So a lot of what we are familiar with is actually in practice, and not a requirement.

And that's important to think about. Because when we're concerned about how decisions are being made and complied with, that means those are things that we can change. Those are things that we can regulate. And so understanding what is mandated and what is voluntary is really important when you're looking to preserve the integrity and power of the Supreme Court.

THE RECAST: Did working on the series change how you perceive the court generally?

PORTER: Yeah, it did. It did in a funny way, which is: I always had a deep respect for the court. And knowing something of the history, I probably have an even greater respect for people who have in the past taken their jobs so seriously. And so understanding that this is the system we have, there's no Plan B, we've got to make this system work.

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Happy Friday! Get your weekend started with some of our reading, listening and viewing recs. 

In “Black AF History: The Un-Whitewashed Story of America,” Michael Harriot puts the overlooked perspectives of Black Americans front and center, drawing on the work of groundbreaking Black historians, scholars and journalists.

Catch SNL alum Sam Jay’s special, “Salute Me or Shoot Me” on HBO from tomorrow. The comedian gives witty takes on long-term relationships, society and embracing our differences.

Doja Cat moves between hip-hop, soul, funk and boom-bap on her new album, “Scarlet”, complete with creepy-crawly artwork.

An Indian American high schooler struggles with her cultural identity in the new horror flick, “It Lives Inside,” a directorial debut from Bishal Dutta.

TGIF: Shakira and Fuerza Regida team up on “El Jefe,” a pop and regional Mexican fusion about overworking. Stick it to the man!

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