On TV: PBS Tackles the Supreme Court

Protesters demonstrate in front of the U.S. Supreme Court, as often happens.

Few people alive today can remember when the United States Supreme Court truly resided in the shadow of its peers. For most of its first 147 years, the court occupied borrowed quarters in the U.S. Capitol—at first a cramped space scarcely sufficient to hear cases, and later the Old Senate Chamber. It was a vast improvement over the Court’s earliest days, when the justices had to convene in the lobby of a Washington hotel, but in a city where political real estate has long been a conspicuous indicator of power, it was significant that the Court remained the only branch of government without its own home. In 1929 Congress approved $10 million to construct the Supreme Court building, and by 1935, when the justices moved into their new chambers, there was little doubt that the third branch of government was an equal among equals. As the PBS documentary The Supreme Court—the first part of which airs tonight—reminds us, the emergence of the court as a powerful and sovereign institution had been evolving in fits and starts for well over a century.

Organized in four one-hour segments, The Supreme Court offers a sophisticated and comprehensive history of the institution. It is engaging filmmaking, especially in its deft use of archival photographs, film clips, and interviews. Among the interviewees who help guide us through the court’s history and development are Akhil Reed Amar, a noted constitutional scholar who teaches at Yale, Sandra Day O’Connor, the first woman to serve as an associate justice, and Chief Justice John Roberts.

The documentary opens with the career of Chief Justice John Marshall, who established the principle of judicial review in the 1803 case of Marbury v. Madison. In dispute was whether some of the so-called midnight judges whom John Adams had appointed to the bench in the waning hours of his Presidency could be denied office. President Thomas Jefferson and Secretary of State James Madison certainly thought so, as many of the judges had never received their official commissions. (Ironically, it was none other than Marshall himself, Jefferson’s second cousin and the outgoing secretary of state, who as keeper of the seal of the United States had failed to see to their delivery.) In a delicately crafted decision, Marshall found technical grounds to rule in the administration’s favor but also asserted the court’s right to invalidate any action of Congress or the executive which it found to be in conflict with the Constitution. He thereby elevated the court’s position to that of coequal with the legislative and executive branches while avoiding an all-out confrontation with Jefferson—a confrontation that might have led the ruling Republican party to crush the Federalist-controlled judiciary. The documentary also reviews Marshall’s opinion in the matter of Fletcher v. Peck (1810), in which the Court first powerfully asserted the sanctity of property rights and the sovereignty of the federal government over the states.

The film profiles other important chief and associate justices, including Roger Taney, the states-rights Democrat who famously ruled in the case of Dred Scott that Congress could not ban slavery in the territories; John Marshall Harlan, a onetime Kentucky slaveholder who in the late nineteenth century became an outspoken lone dissenter in favor of civil rights for African-Americans; Steven J. Field, a Lincoln appointee who, over the course of a long tenure, pushed the court to uphold the “freedom of contract” implied by the Fourteenth Amendment; Oliver Wendell Holmes, Jr., the Boston Brahmin and Civil War veteran who supported the broad right of state governments to enact progressive social legislation in the early twentieth century; Earl Warren, the postwar chief justice whose court vastly broadened the scope of the Fourteenth Amendment to infer new civil liberties for American citizens; and William Rehnquist, who led an aggressive conservative counterassault against Warren’s judicial legacy.

Along the way, we take in a vast storehouse of information. Some of it is trivial but interesting. For instance, in his famous dissent against the court’s decision to strike down the 1875 Civil Rights Act, which barred segregation in many public accommodations, John Marshall Harlan used the same pen set that Roger Taney had used to scrawl out his decision in the Dred Scott case. Of more import, the documentary argues that in the aftermath of the court’s 1819 decision in McCulloch v. Maryland, which found that a state could not impose a tax on the Second Bank of the United States, Thomas Jefferson irresponsibly stoked the flames of nullification by encouraging his many supporters to challenge the court’s assertion of federal sovereignty over the states.

Several themes run through the series, including the tension between state and federal sovereignty and the competition between the court and the executive branch. On a more technical level, the film consistently addresses how the Court has justified or prohibited government interference in the economy, and how individual liberties have ebbed and flowed over two centuries.

The last episode, which focuses on the period since 1970, could have been a poor and present-minded footnote to the larger project, but in fact it makes for some of the most interesting viewing. One is brought to wonder how William Rehnquist ever won Senate confirmation, given his stated opposition to state laws barring segregation in public accommodations and to the court’s decision in Brown v. Board of Education, as well as his work as a GOP “poll watcher” in Arizona, a role that basically involved harassing potential black voters. Nevertheless, the documentary is fair to him, taking care to point out that he abandoned his onetime opposition to the Miranda decision in deference to precedent, and that he governed the court with much more efficiency, humor, and success than his predecessor, Warren Burger. The film ends with Bush v. Gore, in 2000, but sensibly takes no position on the court’s controversial decision to stop the manual recount of ballots in several Florida counties.

With an accompanying volume by the legal scholar Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America, PBS’s documentary should become an invaluable tool for high school and college instructors. It’s a worthwhile use of four hours for anyone even casually interested in America’s constitutional development.

The Supreme Court airs on January 31 and February 7 at 9 p.m.

—Joshua Zeitz is a contributing editor of American Heritage magazine and the author of Flapper: A Madcap Story of Sex, Style, Celebrity, and the Women Who Made America Modern (Crown).