Demystifying the Mythology Around the Supreme Court: An Interview with ‘Deadlocked: How America Shaped the Supreme Court’ Documentarian Dawn Porter

DEADLOCKED premieres at a profoundly consequential time, as Americans grapple with a Supreme Court drastically remade by former President Donald Trump; the historic confirmation of Justice Ketanji Brown Jackson; the unprecedented leak from inside the Court’s chambers; and the aftershock of the landmark Dobbs decision’s effective reversal of Roe v. Wade. To understand this critical moment, the series travels back to the 1950s when Chief Justice Earl Warren heralded an era of progressive legal decisions spurred by the nation’s changing values, paving the zigzagging path the country is still walking today.

"What should you say?" That's an important question any writer and/or filmmaker should ask when approaching their material, from a story and character point of view, down to the overall theme. Documentarian Dawn Porter asked herself this question while going into making her latest docu-series, Deadlocked: How America Shaped the Supreme Court, and yet in turn, she is also asking the viewer. It's incredible how much information she and her team were able to pack into this four-episode series, and what she provides and pulls the back the curtain on is incredibly profound.

This interview has been edited for content and clarity.

Sadie Dean: There is so much that you cover in just four episodes, this could be a living a breathing series for the next twenty years – so many layers - how did this project come to be?

Dawn Porter: I'm a lawyer, and I practiced for five years at a firm in Washington, DC, BakerHostetler. And then after that, I went in-house to ABC News, first as a lawyer, and then I worked in news network standards and practices, and I worked with Vinnie Malhotra who went on to CNN, and then he went on to Showtime. He called me up about three years ago and said, ‘Do you want to do something on the Supreme Court?’ And I said, ‘Yes,’ but we didn't quite know what it should be or what it was going to be.

It's such a blessing, but also, to your point, there's so many ways in. First, I started looking at the confirmation hearings, because they've become so politicized. And it's usually how people interact with the court. But then as I started kind of poking around, I realized, and as things started to feel more urgent, it started to feel like it wasn't just different decisions. It was the way that cases were being decided, the way that they were even getting to the court. And those are worrisome, because our justice system depends on reasoned opinions that explain when we're going to make big shifts, they need to be explained and understandable to the public, because public confidence is really the basic power the court has. We have all done this social compact and said that we will abide by your decisions. So, it's important that those are reasoned, that those follow some logic.

So, then I thought people who are not court watchers are very familiar with these big Warren Court decisions like Brown v. Board of Education or getting the Miranda rules, getting read your rights, or Gideon v. Wainwright, you have the right to an attorney, those are the things that I think touch most people. So, I thought, why don't we start there, and then kind of move forward to understand more how we've gotten to where we are today. So, that's how it kind of evolved over time.

Sadie: The thematic anchor or North Star for this series, at least for me as a viewer, and it’s something touched on immediately in that first episode, which is the legitimacy of the court or at least perception of it. Was that the North Star or was there one that you and your team leaned on for the overall series?

Dawn: I'm really glad you got that. I also think there's a mythology around the court, that if they decided it, it must be true - that they're immune from politics or ethical issues. If you walk by the Supreme Court, I went to Georgetown Law School, I lived on Capitol Hill, I used to walk by that building every day, and it's an impressive building, rightfully so. But that respect that the justices are accorded somehow has immunized them from some criticism or examination in some ways. It's a problem that our court hearings are not televised, they don't allow cameras in the court. 

So, I wanted as much as possible to bring people into both how are the justices selected, and then kind of show that it does matter, like, who's president matters. Nixon gets all those appointments. Why are we surprised that the court took a rightward shift? They didn't all turn out to be as conservative as he wanted, but he campaigned on, getting the court to move away from the Liberty kind of focus. I mean, it's kind of astonishing to think that the putative President of the United States was campaigning, to kind of hold back the court and not have it protect minorities and women and rights. Think about that. So, I wanted to kind of make that point that, who's president matters.

Sadie: Not to give away any spoilers, but how you end the first episode with Nixon being elected, and just like how much his Presidency is going shift America as a whole, is eye-opening. And we are kind of seeing history repeat itself, unfortunately. It’s as Thurgood says in the series, “A black or white snake, they still bite.’

Dawn: They still bite. And I think, too, what I do want people to come away with is paying attention to the court and voicing concern about it does matter. The justices do listen, and you think after Bush v. Gore, the justices, I think, pretty intentionally went into a little bit of a quiet period, they kind of continued to roil up the populace, with sudden departures, or with the appearance of being too political. And so, you get this period of stability for like, 11 years, it was kind of a little bit quiet. And sometimes you would get more liberal-leaning decisions, sometimes you would get more conservative, and that's as it should be. The Constitution apparently is open to interpretation, but it's important that you kind of show your work. [laughs]

Sadie: Yeah, absolutely. And speaking to that, in terms of your research and the archival research that you did on this, first off, how did you make that decision to start from 1857? And then, how much were you able to lean on your research from doing your previous documentary The Lady Bird Diaries to help framework those episodes?

Dawn: The research on this was really extensive, and I had just spent all this time listening to audio tapes from President Johnson, and that was really revelatory, and also Lady Bird as the person who made those available - those tapes. So, it's an interesting nod to her that she really cares. She was a journalist, and she really cared…she really felt that people should understand how decisions are made and she wanted historians and documentarians to review this time period and learn from it. So, I knew that there were a lot of conversations that Johnson had recorded that would be available to us.

The justices are famously private. The people they speak to are usually either legal interest groups, or if there's a Supreme Court reporter who cultivates relationships over the years, we wrote to them but they weren't going to give us interviews. So, if that's gonna happen, then I thought, well, as much as possible, we should use archival to demonstrate, to kind of take us through this period. So, I think we reviewed over 7,000 different pieces of archive between video, letters, photos, and we ended up using in the whole series, like 200 minutes of it is archived. [laughs] I hope, it's the example of show your work. These are not just opinions. We really do a deep dive that way.

And then the other thing that was important, I didn't want it to be seen as just a liberal polemic, so we tried really hard to get people who self-identify as conservative. But the ‘when to stop’ was really challenging, we extended twice, because it felt like big, giant things were happening. But we did stop before the revelations about Clarence Thomas were fully explained. And of course, they're still being explained.

But I think it's like something you said earlier, which is, you could keep going, obviously. And so, I think what I like to think now is there are lots of great journalists who are reporting on the everyday, and that's not what we're doing in long-form documentary. I was trying to kind of set the table, give you a history of how we got here. And also, maybe point to things to look for. How are the justices deciding what cases to take? Are they doing them on an emergency docket without opinion? Or are they doing it in a more systematic way? Are they respecting precedent? Or are they explaining why this is the time to overturn 100 years of precedent in gun cases? Are they explaining it? What do their opinions say? So, I think, all of the attention that journalists and filmmakers can put on to what the court is doing, I think it's all welcomed. People should pay attention to as many different things as they can. And they're not all going to be the same, which is healthy.

Sadie: It goes hand in hand as a documentarian, you have this great responsibility to show both sides. And even with your law background, you're representing that too in this film. Were there times when you had to stop yourself in the process and take your personal opinion out in order to do this?

Dawn: Oh yeah, quite a bit. I look at John Bash who was a law clerk for Justice Scalia, and we tried to be really careful with what he said. And he questioned us. He was like, ‘You're kind of a liberal person,’ and I think that's important to treat people's opinions respectfully. Ted Olson, I have a lot of respect for Ted Olson, and I think Ted Olson is kind of your classic Republican, he's a conservative person with a reverence for the court and for process. I wasn't going to put any extremists in because we don't have a responsibility to share lies. But we do have a responsibility to contextualize, so we have Don Ayer, who was in the Reagan Justice Department. So, I think that to the extent, you can't take your brain out of it, and I clearly am on the more liberal side, but I think everybody we talked to is concerned about if not the decisions themselves, they're concerned about the reputation of the court. That's universal. And that is, I don't care where you fall in the political spectrum, no one wants a court that is not respected. I think they're all concerned about where we are.

Sadie: What inspired you to become a documentarian?

Dawn: I was a lawyer, but my father was a photographer. And so, I've always been attracted to photography, and to media; we used to make Super 8 films when I was little. And then, when I went to ABC Television, the way that my boss organized our department was, she kind of relied on my legal background, and if we did a long investigative piece, she would have me read the studies. [laughs] And we were looking at, not what can you say, but what should you say, as a journalist, and really thinking about ethics. And so, that's how I came at storytelling is, what's your responsibility when you have a public platform?

But then really, it was, I felt like, as a Black woman, there were a lot of stories about people who looked like me, but not by people who looked like me. So, my first film was film called Gideon’s Army. It's about young, Black public defenders in the south. And I just felt like I could help explain why they wanted to be public defenders, why they wanted to defend poor people accused of crimes, but also remind people of how important it is that we have strong lawyers. We don't just lock people up...If you frame it that way people understand, versus - why do we care about criminals? Well, you're not a criminal until you're judged adjudicated, so you'll have to get the adjudication part. And then what I discovered was, filmmaking, particularly documentary filmmaking, just really was this outlet for so many of my interests; like this legal justice side, but this creative side, managing teams - I like all of it. It turned out to be the right thing.

Sadie: And I'm so glad that happened and that you're still doing it. Any advice for first-time documentarians?

Dawn: I think that nobody makes a film by themselves. And so, where you don't have a skill, find a trusted collaborator, or collaborators. I try and work with the same people over and over, because I feel like, I couldn't do what I do without intense research, without people scouring sources for that one bit of archival that's going to help you understand - the editor, is so important. So, finding the people that you want to collaborate with, and respecting them and giving them room to add to the creative process.

And then the other thing is, really think about what you want to say, and whether you're the person to tell a particular story. And that doesn't mean you can only tell stories about people from your same background, but it just means what are you going to add to it? And if you come from a different community, or you come from a different experience, just think about that, and how you want to make sure that you can really understand the perspective of the person whose story you're telling. I always think about, not only the audience, but the subjects. And I do right by their story. And I think if you ask yourself that, you can usually make the right choices, because there's 1,000 choices you'll have to make. [laughs]

Deadlocked: How America Shaped the Supreme Court streaming with the Paramount+ with SHOWTIME plan starting September 22, 2023.