More stories

  • in

    ‘You want to think America is better’: can the supreme court be saved?

    When Dawn Porter studied law at Georgetown University in Washington, she would pass the US supreme court every day. “You walk by the marble columns, the frontage which has inspirational words, and you believe that,” she recalls. “You think because of this court Black people integrated schools, because of this court women have the right to choose, because of this court, because of this court, because of this court.”Its profound role in American life is chronicled in Deadlocked: How America Shaped the Supreme Court, Porter’s four-part documentary series that traces the people, decisions and confirmation battles that have helped the court’s relationship with politics turn from a respectful dance into a toxic marriage.Porter, 57, an Emmy award winner who maintains her bar licence, remembers first year common law classes when she studied the court’s landmark decisions. “Like most lawyers I have a great admiration for not only what the court can do but its role in shaping American opinion as well as American society,” she says via Zoom from New York, a poster for her film John Lewis: Good Trouble behind her.“If there’s a criticism of the court in this series, it comes from a place of longing, a place of saying we can’t afford for this court to lose the respect of the American people. There’s going to be decisions over time that people disagree with. That’s not unusual. What’s unusual is how cases are getting to the court, how they’re ignoring precedent and the procedures by which the decisions are getting made. That’s where I would love people to focus.”Deadlocked offers a visual montage of the court winding back in time: women and people of colour gradually disappear in favour of an all-white, all-male bench. They include Chief Justice Earl Warren, who heralded an era of progressive legal decisions such as Brown v Board of Education, a unanimous 1954 ruling that desegregated public schools.Porter says of the paradox: “One of the things we were thinking is, isn’t it ironic that this all-male, all-white court is responsible for Brown v Board and for Roe v Wade [which enshrined the right to abortion] and you have the right to an attorney, which is Gideon v Wainwright, and you have the right to have your rights read to you. Yet when we have the most diverse court we’ve ever had, we’re seeing a rollback of some of these civil rights.”In 1967, President Lyndon Johnson nominated the civil rights lawyer Thurgood Marshall to be the first Black man to serve on the court. A group of southern senators, almost all Democrats, sought to exploit riots in the major cities and fears about crime to try to derail his nomination. Marshall endured five days of questioning spanning three weeks and was finally confirmed by the Senate in a 69-11 vote.There have only been two African American justices since: conservative Clarence Thomas and liberal Ketanji Brown Jackson. The first woman to sit on the court was Sandra Day O’Connor, a moderate conservative appointed by the Republican president Ronald Reagan.“It takes a century of supreme court jurisprudence before we get a woman on the court. There’s an irony there that we have the current composition of the court and yet we have probably one of the most least hospitable courts to individual rights.”The court’s relationship with public opinion has been complex, leading at some times, following at others. In 2015, it ruled that same-sex couples had the right to marry. The 5-4 decision removed same-sex marriage bans in 14 states – an acknowledgment of shifting attitudes and the rise of the LGBTQ+ rights movement.Porter observes: “The court doesn’t have an army. It doesn’t even have PR or a media representative. The supreme court can’t change public opinion but what the court can do is either set an aspirational goal or it can reflect where the country is. For the gay marriage decision, that’s where the country was. The country was supportive of same-sex marriage and the court ratifies that public opinion and makes it law.”Opinion polls show that a majority of Americans have also consistently supported reproductive rights. In Roe v Wade in 1973, the court voted 7-2 that the constitution protects individual privacy, including the right to abortion. Porter observes: “It’s not that controversial a decision by that time. More than half the states had reproductive rights access so it was only going to affect some of the states.”At the time, Christian evangelicals were not opposed to abortion rights. “Evangelicals historically were pro-choice. This is where politics comes in and is on this collision course with the judiciary. Evangelical leaders like Jerry Falwell realised, oh, wait, abortion is a wedge issue and there are all these Catholic voters. So they come together.“What the evangelicals want is tax exemption for religious schools. The Catholics don’t want abortion and together they’re a powerful voting bloc. They not only say we’re going to try and get the supreme court to change but we’re going to elect a president who is going to help us.”These religious groups duly turned against the Democratic president Jimmy Carter, an evangelical Sunday school teacher, in favour of the divorced former Hollywood actor Reagan. Porter continues: “What you see is kind of politics at work. How can we get power? How can we get what we want? How can we form alliances?“That alliance is very powerful because Reagan ends up having so many appointments to the court and you see the rightward shift of the court. These kinds of monumental changes don’t happen quickly but building blocks are constructed in these earlier years, like in the 80s, and they’ve continued to this day.”The court’s role as a political actor was never more stark than in 2000, when its ruling in Bush v Gore terminated the recount process in Florida in the presidential election, effectively handing the White House to George W Bush. Porter notes: “It’s 5-4 to step in and stop the voting to determine who would be the next president of the United States. Sandra Day O’Connor later said she regretted voting with the majority.“Also, interestingly, Justices John Roberts, Brett Kavanaugh and Amy Coney Barrett are all working with the Republicans on the side of soon-to-be President Bush. Is that illegal? No. Is it impermissible? No. Is it unethical? No. Is it interesting? Yes!” Porter says with a laugh.But the ever-growing politicisation of the court became turbocharged – perhaps irreversibly – by the death of the conservative justice Antonin Scalia in 2016. Mitch McConnell, then Republican majority leader in the Senate, committed a professional foul by refusing to act on President Barack Obama’s nomination of Merrick Garland to replace him, insisting that the seat remain vacant in an election year.Step forward Donald Trump, the Republican nominee for president who released a list of 11 potential supreme court nominees based on advice from conservative groups such as the Federalist Society and the Heritage Foundation. It was an unprecedented political masterstroke that comforted religious conservatives troubled by his unholy antics and past support for abortion rights.skip past newsletter promotionafter newsletter promotionMcConnell is seen in Deadlocked asserting that “the single biggest issue that brought nine out of 10 Republican voters home to Donald Trump … was the supreme court”. This clip is from an address he made in 2019 to the Federalist Society, which has played a critical role in tilting the court to the right.The group was founded in 1982 under the mentorship of Justice Antonin Scalia to challenge what conservatives perceived as liberal dominance of courts and law schools. Among its most prominent members was Leonard Leo, who oversaw the rise in its influence at the expense of the more liberal American Bar Association.Porter says: “Leonard Leo is one of the most fascinating and yet not widely known political actors in our contemporary history. The Federalist Society realises: we can have influence in grooming judges and who’s getting appointed to the lower courts. Leonard Leo takes that on steroids and eventually becomes the person who former president Trump looks to create his list of potential supreme court nominees.“In recent years Leo has secured a multibillion-dollar war chest in order to continue to groom and populate the lower courts with very conservative ideologues. Amy Coney Barrett is a product of that. Kavanaugh is a product of that. All the greatest hits are with Federalist Society influence.”Sheldon Whitehouse, a Democratic senator, has called it “the scheme”: a decades-long plot by rightwing donor interests to capture the supreme court and use it to accomplish goals that they cannot achieve through elected officials. The Federalist Society is a receptacle for “dark money” – millions of dollars in anonymous hidden spending.Porter adds: “The problem with private entities like the Federalist Society having so much influence and power is that there’s no insight into the source of their funds. We certainly do know that it’s not a coincidence that some of the interests of some of the most conservative folks seem to be being served by these appointments.”Last year the rightwing forces achieved their greatest victory with a decision that once seemed unthinkable: the overturning of Roe v Wade after nearly half a century. Most Republican-led states moved to restrict abortion with 14 banning the procedure in most cases at any point in pregnancy. About 25 million women of childbearing age now live in states where the law makes abortions harder to get than they were before the ruling.Porter had wanted to believe the court she admired as a student was a bulwark in defence of individual liberties. “Every pundit, every organisation, said Roe is going to be overturned and yet it was still hard to believe that 50 years later, when so many people rely on that decision, that it actually could be overturned.“I will say it really did personally impact my feeling about the court. Reading the decision, there’s ignoring of history. It’s not a well-written opinion, it’s not coherent, and that’s really hard. We all need to believe in things and we all need to believe that these are the smartest people and that they’re able to put aside their personal beliefs and that didn’t seem to be the case.“It was more than disappointing. It’s somewhat comforting that we have such a strong reaction to it but I see the cases of the women who have been so harmed by this decision. There are people have been forced to carry pregnancies to term that were not viable, people who just stay pregnant who didn’t want to be pregnant. You want to think America is better than that.”As the final episode of Deadlocked acknowledges, the court faces a crisis of legitimacy. A series of extremist rulings out of whack with public opinion have come at the same time as ethics scandals involving the rightwing justices Thomas and Samuel Alito. The share of Americans with a favourable opinion of the court has declined to its lowest point in public opinion surveys since 1987: 44% favourable versus 54% unfavourable, according to the Pew Research Center.Porter adds: “Every single person we spoke to for this series regardless of their political background – and we have Scalia’s former clerk, who wrote the decision broadening access to guns; we have Ted Olson, who argued Bush v Gore for President Bush; we have Don Ayer, who was a Reagan justice department official – is concerned about the reputation of the court and what the future holds if the court continues to chart its own path and not realise the delicate balance of our tripartite system of government.“What if the court sides with a Trump who refuses to accept the results of the election next year? That’s what we’re talking about and a lot of the people who did the insurrection are still out there; we didn’t arrest them all. We’re in uncharted waters. It’s not a game and I don’t think anyone wants to actually put this to the test of: will our democracy survive?”
    Deadlocked: How America Shaped the Supreme Court premieres on Showtime on 22 September with a UK date to be announced More

  • in

    High-spend politics might make great TV, but democracy pays the price for it | Torsten Bell

    High-spend politics might make great TV, but democracy pays the price for itTorsten BellThose who wish Westminster was more like The West Wing should take note of research on election spending caps in Brazil A long time ago in a galaxy far, far away (pre-Brexit that is), I was vaguely involved in British politics. One thing that always stood out for me was how people from both main parties would often complain that British politics was very drab. They always meant in comparison to the US variety – with its higher production values that mirrored television long before Donald Trump turned it into a grim reality show.Among the reasons for our political glamour deficit are the limits on how much parties can spend on campaigns (£30,000 per constituency) and what they can spend it on (TV advertisements are banned). But people in Westminster should get over their dreams of reliving The West Wing, because it’s a small price to pay for ensuring money doesn’t play an even bigger role in our politics.Those needing further convincing should read new research that examines the impact of spending limits in mayoral elections in Brazil. Areas with more stringent limits attracted more candidates (a 25% lower spending cap resulted in 9% more candidates) and saw fewer incumbents re-elected.Some (idiots) defend high spending limits by arguing that political candidates raising funds from their fellow citizens is key to the cut and thrust of democracy.But is that what actually happens? The Brazilian research work shows that winners in the high spending cap regions did have more cash. But where did the money come from? Themselves.Allowing more money into our politics would be a very dangerous game. You’ve got to keep the spending limits down to keep the oligarchs out.TopicsPoliticsHidden gems from the world of researchPolitics TVThe West WingUS politicscommentReuse this content More

  • in

    'We're all part of the story': behind Will Smith's 14th amendment docuseries

    Chances are it is the most influential amendment to the US constitution that you aren’t familiar with. Given its impact, it is astonishing how little the 14th amendment is discussed in public life. Americans can’t rattle it off like the first and second amendments – but its words have fundamentally shaped the modern definition of US citizenship and the principles of equality and freedom entitled to those within the country’s borders.Sitting at the crux of these key ideals, the 14th amendment is cited in more litigation than any other, including some of the US supreme court’s most well-known cases: Plessy v Ferguson, Brown v Board of Education, Loving v Virginia, Roe v Wade, Bush v Gore, Obergefell v Hodges. And because these noble notions are embedded in the 14th, it has the remarkable ability to generate both boundless hope (for the promises of that more perfect union aspired to in the constitution’s preamble) and crushing misery (for the failures to achieve such promises).The new six-part Netflix docuseries Amend: The Fight for America is a deep dive into the 14th amendment. Ratified in 1868, it gave citizenship to all those born or naturalized in the country and promised due process and equal protection for all people. Amend threads the amendment through the fabric of American history, from its origins before the American civil war to the bigoted violence of the Reconstruction and Jim Crow eras, through the tumultuous years of the civil rights and women’s liberation movements, right until today’s feverish debates over same-sex marriage and immigration. The show is a journey into America’s fraught relationship with its marginalized peoples, who have fought to fully be a part of the country.It’s heady stuff for sure, but portrayed with an eye toward educating and entertaining, employing a blend of performance, music and animation, in addition to the requisite experts and archival images. Acclaimed actors breathe life into speeches and writings of key historical figures: Mahershala Ali as Frederick Douglass, Joseph Gordon-Levitt as Andrew Johnson, Diane Lane as Earl Warren, Samira Wiley as Ruth Bader Ginsburg, Laverne Cox as James Baldwin, Pedro Pascal as Abraham Lincoln, and Randall Park as Robert F Kennedy, among many others.Amend is infotainment expertly done, with the host Will Smith’s affable yet engaged approach gently guiding viewers through moments joyful and difficult. Smith executive-produced the series with the Emmy-winning writer Larry Wilmore, who exhibited his skill at finding humor in dark moments as the “senior black correspondent” on The Daily Show With Jon Stewart. “People just don’t know what the 14th amendment is,” Wilmore said to the Guardian. “The first, second and fifth are hogging up most of the oxygen. And yet the 14th has been the most resilient and durable. It’s doing a lot of heavy lifting, but a lot of light has not been shown on it.”Amend helps viewers appreciate the 14th amendment’s unwavering relevance by delving first into its origins. After the Emancipation Proclamation, some 4 million enslaved people were free – but they weren’t citizens, even after fighting to preserve the union during the civil war. The 14th amendment changed that, circumscribing citizenship and providing a roadmap for formerly enslaved people to fully actualize their economic, political and familial lives. It is the first appearance of the word equal in the constitution. “In a lot of ways, our country wasn’t founded in 1776,” said K Sabeel Rahman, a Brooklyn Law School professor. “It was founded by [Ohio representative] John Bingham and Congress passing the 14th amendment because that’s the modern constitution.”The system of labor, wealth and politics by which white southerners had defined themselves was crumbling – but they wouldn’t let it go easily. While citizens and terror groups like the Ku Klux Klan waged violence on black Americans, a popular, persuasive new medium helped propagate the mythologies of the lost cause – and it is partly why many aren’t familiar with the 14th amendment: “The former Confederacy got the final cut on the movie of civil war,” as Smith puts it, with films like Gone With the Wind and The Birth of a Nation shaping the dominant historical narrative.The gauzy fantasy of the noble civil war, coupled with supreme court–sanctioned segregation, ensured the scourge of open racism endured for another century after the 14th amendment’s passage. The 1954 Brown v Board of Education decision ruled that “separate but equal” violated the 14th’s equal-protection clause, and the Civil Rights Act of 1964 banished Jim Crow segregation. But the calls to enforce the 14th can be heard just as loudly today as in the 60s and 70s: Amend’s third episode draws a tight parallel between the non-violent activism of the civil rights movement and last year’s Black Lives Matter protests, both eschewing moderate calls for patience in favor of Martin Luther King’s “fierce urgency of now”.“We have a set of ideals in this country, and we continue to fail to live up to them,” the activist Brittany Packnett Cunningham said to the Guardian. “Every single time the police shoot another unarmed black or brown or indigenous person, every single time an LGBTQ+ person is fired from their job or left houseless, every time immigrants are stripped of the rights that should belong to them, we are experiencing the gap between what is written and what is true. And the more we grapple with these challenging conversations, the more real we can get not just about the scale of the problem we have to fix but how exactly we can go about handling it.”The amendment is a lodestar for all claiming the constitutional right to be treated fairly. Women, with the help of then attorney Ruth Bader Ginsburg, convinced the court in the 1970s that the 14th’s equal protection clause should apply to gender in the same way it is applied to race, both being immutable characteristics that don’t affect one’s ability.But women’s equality depends on control over their own bodies and the choice of when and whether to have children. In 1965, the right to privacy was established, founded on the 14th amendment’s due process clause, and this new concept was applied to Roe v Wade in 1973, which legalized abortion by determining that the decision to end a pregnancy belongs to the woman, not the state. “It’s an unfolding process,” said Jeannie Suk Gersen, a Harvard law professor, of the 14th amendment extending to the right to abortion. “It may not seem obvious as a path, but that is the process of constitutional law.”Indeed, the 14th touches Americans’ most intimate moments. Its passage finally allowed formerly enslaved people to legally marry, and later it was applied to protect the right of interracial couples to marry in 1967 and the right of consenting adults to engage in intimate sexual conduct in 2003. Amend devotes one powerful episode to the story of Jim Obergefell, the plaintiff in the 2015 supreme court case that legalized same-sex marriage nationwide and proved that marriage equality too was at the heart of the 14th. (Obergefell admits he had no idea what the 14th amendment was before his case.)More than 150 years after the passage of the 14th, many groups are still actively struggling to realize its promises. Immigrants have long devoted backbreaking labor to this country, only to see intolerant policies, racism and violence trample their dreams. The 1882 Chinese Exclusion Act, the only major federal legislation to explicitly stop immigration for a specific nationality, was the result of the supreme court putting fear and misguided claims of national security above the constitution’s expressly provided protections. Dehumanizing and criminalizing immigrant groups to deny their 14th amendment rights has been part of America’s playbook ever since. “We’ve just survived four years of a president who’s been openly racist and has targeted particular immigrant communities based on their race,” said Alina Das, the co-director of the Immigrant Rights Clinic at NYU’s law school. “Equality under the law is something that the immigrant-rights community is still striving for in many ways.”After all, says Cunningham, “the biggest misconception [about the 14th] is that once it’s written on paper, the work is done. The truth, of course, is very different, and I think that Amend really pushes people to see past the veneer of American exceptionalism.” The show sadly but clearly illustrates how ignorance and hate have long fomented misunderstanding, anger, violence and inequality in America and how potently fear and intolerance have prevailed.But it is also just as clear who has the power to make the 14th amendment’s promise of an equal society a reality: not the courts, but we the people, ordinary folks taking to the streets, sacrificing our time, privacy, and sometimes safety, and doing the courageous, often unglamorous hard work of making sure its words have meaning for all of us. “We’re all part of the story of the 14th amendment, and it’s a continuing story,” Das notes. “And the documentary does a wonderful job of inviting people to be part of the living history of the amendment.” As Smith says at the conclusion of the series: “We have to choose to bring 14 to life.”“We’re giving an uplifting message here, not a dour or bleak one, said Wilmore. “There’s a lot of tough material here, but at the end of the day, we’re saying that this is what allowed the promise to happen – this document is the pathway for the promise.” More

  • in

    'As guarded as Fort Knox': the inside story of Hillary Clinton's presidential campaign

    ‘As guarded as Fort Knox’: the inside story of Hillary Clinton’s presidential campaign Thousands of hours of behind-the-scenes footage were shot of the former first lady’s disastrous bid for the White House. How did film-maker Nanette Burstein turn it all into a story of hope? ‘As guarded as Fort Knox’ … the candidate in Nanette […] More

  • in

    Rachel Maddow on her critics: ‘Your hatred makes me stronger. Come on! Give me more!’

    Interview David Smith in New York The G2 interview Rachel Maddow Interview Rachel Maddow on her critics: ‘Your hatred makes me stronger. Come on! Give me more!’ David Smith in New York The MSNBC host’s show has become a safety blanket for many US progressives. She discusses her demonisation by the right, tackling the president’s […] More