“DEADLOCKED: HOW AMERICA SHAPED THE SUPREME COURT”; interview with filmmaker Dawn Porter

Last Updated: October 5, 2023By Tags: ,

The filmmaker Dawn Porter is also a lawyer. And even though she has the utmost respect for the Supreme Court, she is nonetheless perturbed by what she describes as the public’s loss of faith in its premier judicial institution.

“The court did not just turn right suddenly,” Porter said on a recent phone call. “We have a very dramatic and ideological shift. And so I wanted to trace the history so that people could understand how this happens—and understand what we are at risk of losing.”

Porter’s new docuseries on that very subject is called “Deadlocked: How America Shaped the Supreme Court,” now streaming on Showtime and Paramount+. In four searing episodes, Porter reaches back into the history of this country, from when the courts decided that Dred Scott had no legal rights as a citizen to sue for his freedom, and on up through today’s court comprising two African Americans, a Latina, and several women.

This is progress but “Deadlocked” asks if the current Roberts Court is an agent of change for the better. For most of the first episode coverage is spent on the decisions made by the Warren Court that made segregation in public education illegal, and legalized abortion nationwide in 1973—until that decision was overturned only last year (the first episode features people on both sides of those issues alternately enthusiastic or in tears.)

“Prior to the Warren Court, the Supreme Court didn’t really deal with questions of individual rights. It was the Warren Court that said the court can be used to defend the weakest, the least powerful,” Porter said. “So that was an expansion of rights.”

When asked if it’s fair to compare the reaction to the Warren Court’s decisions to the Roberts Court’s, in which one or the other side calls the court “illegitimate,” Porter threads a difficult needle, saying that the Warren Court of the last century was in step with the right side of history, whereas today’s Supreme Court is somewhat revanchist.  

“Today we see a court completely out of step with a history of American tolerance and protection,” she said. “So when you see the court do things like say the EPA does not have the authority to issue regulations that protect the air and water, that’s very different from saying the Constitution protects a person’s right against personal search and seizure. They’re just not equivalent.”

Porter believes the Roberts Court is ignoring precedent entirely, and “behaving in a way that is ahistorical.”

She also pushes back against any notions that “Deadlocked” is a hit job coming solely from a liberal perspective. Porter includes several conservative voices in her docuseries to present both sides of the issue, among them Ted Olson, who served as the solicitor general under George W. Bush.  

“We [also] have John Bash, who was a clerk for Justice Scalia [and] who says, ‘We win now!’ We’re overturning 100 years of precedent on gun rights but we got the votes,’” Porter said. “I mean he says more than that, and I really wanted to let him make his arguments, which I think he does very well.

“I tried hard not to have this be a liberal kind of polemic,” she added. “And that’s why we spent 200 minutes of the series [using] archive [footage]. And that’s very intentional so that people can judge for themselves what the history says.”

Political timing can be anything but fair when it comes to presidents appointing Supreme Court justices. In recent times, then-Senate Majority Leader Mitch McConnell successfully held up Barack Obama’s nomination of Merrick Garland until Donald Trump came into office, who eventually seated three justices on the court. (Garland is now the attorney general for Joe Biden.)  

“A lot of what I’m focused on is how many justices did Nixon get? Four. Reagan? Four. Carter? Zero,” Porter said. “You can agree with the outcome, but you can’t disagree with what happened. And then you can make your determination of where we go from here.”

Porter also wishes to blow up such myths as that Roe v. Wade was controversial at the time the decision was written in 1973. The decision carried 7-2, and there wasn’t much public outcry at the time. The reactionary elements hunkered down, biding their time until they could fight back with a vengeance.  

“The series lays out pretty explicitly in Episode 2 how Jerry Falwell used the issue of abortion in order to appeal to a hard-right portion of evangelicals to create an alliance with Catholics to elect Ronald Reagan so he could preserve tax-exempt status for his schools that were originally discriminatory,” Porter said. “That was the motivating factor; Roe was just in the way.”

I last spoke to Porter in 2020, just before the premiere of “John Lewis: Good Trouble,” which came out during the pandemic not long before the congressman’s passing. In “Deadlocked” she includes a clip of the famous march across Selma’s Edmund Pettus Bridge in 1965, in which Lewis was concussed by a policeman.  

The last time Porter saw the late Georgia congressman was Valentine’s Day 2020, his health already failing due to pancreatic cancer. Furthermore, the pandemic further scuttled any plans for a tour of screenings.  

“I was living in California at the time, and I flew to [Lewis’s] house and showed him the film, so we got to watch it together,” Porter recalls. “And then I spoke to him…after Geoge Floyd was killed. He was still the most positive person. He said, ‘Look, everybody is out in the street marching. Isn’t that wonderful?’”  

We are now slightly more than a year away from the next presidential election. Whoever assumes office in January 2025 could potentially reshape the Supreme Court for another generation. While Porter chuckled and said we could check in for another interview after that date to gauge her sense of optimism, she did share that her respect for the institution of the nation’s highest court has not diminished beyond redemption.

“I came away with even more of a reverence for what this court can be, and I think that a lot more people are paying attention,” she said. “[…] it’s time that we shine a light on the court and how it impacts you and me literally daily.”

“Deadlocked: How America Shaped the Supreme Court” is streaming on Showtime and Paramount+.