“The only power the Supreme Court has is its legitimacy…and if it loses that, the question becomes, why obey?”
The documentary trailer projected on the screen of the John F. Kennedy Jr. Forum at the Harvard Kennedy School’s Institute of Politics asked its packed audience this question. On September 20th, Harvard undergraduate and graduate students eagerly gathered to hear a timely conversation on the state of the U.S. Supreme Court and hear director Dawn Porter discuss her new Showtime series “Deadlocked: How America Shaped the Supreme Court.”
Cheri Beasley, former North Carolina Supreme Court Chief Justice and a Fall 2023 Institute of Politics Resident Fellow, moderated the lively conversation. She was joined by Harvard Law School Professor of Practice and featured member of the documentary Alan Jenkins. Co-sponsored by the Shorenstein Center of Media, Politics, and Public Policy, the event focused on the U.S. Supreme Court’s impact on policy-making. Following the conversation, the audience watched an advanced screening of an episode of “Deadlocked.”
The conversation began with Porter’s background. After attending Georgetown University Law School and working as an associate for Baker & Hostetler LLP for five years, Porter pivoted to filmmaking, working in-house as an attorney for ABC Television and later Director Standards and Practices for ABC News. When Showtime called her in 2020 with an offer to direct a series about the Supreme Court, Porter—with a strong background in the legal system—jumped at the opportunity.
Porter’s initial mission was to document how the Supreme Court became what it is today. “At first I was really interested in the confirmation process because that has become so politicized…in so many ways. As we were doing our research I realized that most Americans weren’t aware of some of our history…I thought [that] it is important that we study our history. I wanted to give four hours tracing that history,” she said.
The series begins with the history of the Warren Court, which ushered in a period of unprecedented civil rights reform that cemented the court as a symbol of justice to Americans with its famous Brown v. Board of Education decision. “That was actually when the court really changed from looking more at…economic issues to looking at individual rights,” Porter explained.
Both Jenkins and Porter affirmed that the Warren Court became the example of what the Supreme Court is supposed to do—protect fundamental rights. “The Framers of our Constitution never envisioned that people who look like us will benefit from at least the First Amendment in life for themselves,” said Porter, speaking to her own identity as a Black woman in filmmaking.
The panelists repeatedly pointed out that Black people in particular have looked to the Supreme Court to protect and expand their rights, with the Warren Court being a prime example. However, Porter raised an interesting and contrasting perspective, contemplating whether the Court can actually be a mechanism that protects freedoms, or if we are far too-trusting of the system. She asks, “What if that’s all wrong? What if it is actually the Warren Court that is the outlier? Was it just a lucky convergence of affairs or is it something that we will see again?”
The conversation then shifted to President Nixon, who Porter explained appointed four conservative-leaning justices in his campaign to take back the Court following the Warren Court. As argued in the documentary, this radical court did not randomly emerge. It was instead the culmination of a gradual and decade-long rightward political shift.
Much of the documentary focuses on the confirmation processes of justices, in light of the Federalist Society’s recent impact on creating a pipeline of conservatism in the law. The Federalist Society for Law and Public Policy Studies is an American conservative and libertarian legal organization that advocates for an originalist interpretation of the U.S. Constitution. As the panelists mentioned, the well-funded Federalist Society has been extremely effective in perpetrating conservative agendas through the federal judiciary, including putting conservatives on the bench.
Yet in recent decades, the Federalist Society has transformed its mission, permanently bringing in conservative lawyers, scholars, and judges into the legal world and even hand-picking Supreme Court justices. “There’s no real problem with creating an affinity society to share views, to try to even influence elections to the court,” Porter said.
“Donald Trump asked Leonard Leo, then one of the leaders of the Federalist Society, for a list of Supreme Court prospective justices…in the series that Trump waves and says ‘well, I have a list and the Federal Society helped me.’ They didn’t help him, they created the list. The idea that a president has outsourced to an ideological interest group the vetting and nomination..that is extraordinary,” she added.
This, to Porter, is what the series attempts to divulge: “It is not a complaint about decisions that I don’t like,” but more of a “request to us all to evaluate how decisions are being made, how justice is being treated, and what procedures and practices are we seeing that are unprecedented,” she said.
An integral point of conversation was the role of luck in the selection and composition of Supreme Court Justices. Former President Donald Trump was able to nominate and fill three vacancies on the Court, whereas current President Joe Biden has only been appointed one nomination.
To a certain degree, much of the procedure in appointing justices is random. But the process is also problematically cyclical. The documentary recounted that during Trump’s term, countless procedures relating to the Court were completely changed, allowing Trump to push his conservative agenda. From changing the amount of Senate votes needed to confirm Supreme Court nominees to fast-tracking Supreme Court Justice Amy Coney Barrett’s nomination, the past few years have made one thing very clear about the Supreme Court: it is easily manipulated.
The current Supreme Court has an unpredictable and unprecedented future. The question then becomes: has it lost its legitimacy? “I hate to tell you all. For most of your adult lives, so by the time that you are our age, this is still going to be the court that you have, so good luck with that,” Porter remarked, garnering an immediate rupture of laughter.
Jenkins offered a simple piece of forward-looking advice: “I think that the story is not fully written.” He provided historical evidence to make this point, such as Justice Blackmun’s unexpected defense against the death penalty, Justice Kennedy’s stance on abortion, and Justice Warren’s general ability to influence the Court. Jenkins affirmed that the justices are people, and that they can “grow and change over time.” The public’s trust in the Supreme Court may have to rely on this, hoping that the justices will be able to adapt with contemporary events.
The conversation concluded with an open-question round asked by members of the audience. The Harvard Independent asked Jenkins, “Is there anything that we as Harvard students can do specifically with our education to ensure that we don’t stand idly by and watch more of our guaranteed civil rights be stripped away?”
“As students, as faculty, we need to return to core democratic values, make sure we are teaching those values and those ethics, and that students are studying them…This is true for moderates, and progressives, and conservatives; some of the heroes for example of the insurrection were conservative republicans who with integrity believed in upholding democratic values,” Jenkins replied. ”We need those people, many of some were my law school classmates, whom I vehemently disagreed with on lots of issues, and I’m grateful to them for standing up for the institution when it mattered.”
Meena Behringer ’27 (meenabehringer@college.harvard.edu) and Rania Jones ’27 (rjones@college.harvard.edu) are two women who would like to have their fundamental rights back.