Producer and lawyer David E. Kelley wrote an episode that chastized the justices right to their faces.
By Tony Mauro|May 06, 2008 at 12:00 AM
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WASHINGTON – Nearly a decade ago, when his show “Ally McBeal” was at its peak, lawyer-turned-Hollywood-producer David E. Kelley was invited to dinner at the home of then-Supreme Court Justice Sandra Day O’Connor. There, Kelley recalls, he got to chat with four or five justices along with other D.C. luminaries. But now, Kelley says in an exclusive interview with Legal Times, “I’ve probably disqualified myself” from any justice’s invitation list for a return visit. That’s because of an April 22 episode of Kelley’s current hit show “Boston Legal,” which included one of the most vociferous popular-culture critiques of the current conservative Supreme Court since John Roberts became chief justice in 2005. “We went right after them,” Kelley acknowledges, asserting that the Supreme Court does not deserve the “hands-off treatment” it usually gets in the media and in political discourse. The anti-Roberts Court screed, improbably enough, is delivered to the justices to their faces during the episode titled “The Court Supreme.” Co-star James Spader, who plays Boston lawyer Alan Shore, lights into the court as he argues before look-alike justices on behalf of a Louisiana child rapist facing the death penalty. The episode aired just six days after the real court heard arguments in Kennedy v. Louisiana, an actual child rape/death penalty case. A sample of the rhetoric: Shore attacks the “overtly and shamelessly pro-business” court, and takes a sharp detour from the rape case to slam Justice Antonin Scalia for his seemingly likely support for Exxon Mobil in the case – also argued recently – involving punitive damages awarded after the Exxon Valdez oil spill. “Nineteen years after the Valdez oil spill and the pla intiffs are still waiting to be fully compensated,” Shore says. When the Scalia character interjects sharply, “You are getting so far off point,” Shore shoots back: “My point is, who are you people? You’ve transformed this court from being a governmental branch devoted to civil rights and liberties into a protector of discrimination, a guardian of government, a slave to monied interests and big business and today, hallelujah, you seek to kill a mentally disabled man.” The episode had the show’s usual zany angles, including flatulence inside the court chamber, courtesy of Shore’s partner Denny Crane, played by William Shatner. And the scenario – with Shore entering the case two days before the hearing but still finding time to hit a go-go club the night before – was beyond improbable. But the episode’s “ripped from the headlines” topicality, along with a remarkable level of detail and accuracy in its portrayal of the court – including references to little-known sculpture and customs at the court – has given the episode a life of its own. Slate’s Supreme Court correspondent Dahlia Lithwick wrote, “I can’t recall another time I’ve seen anything as close to the real justices represented on prime-time television, or a moment in which someone in the popular culture . . . really took on the Roberts Court as a collection of political actors.” Even Stanford Law School professor Jeffrey Fisher, who argued the real child rape case on April 16, has seen and was impressed by the episode – though he distanced himself from the more outrageous aspects. Fisher also argued in the Exxon Valdez case. “It was striking how closely the episode hewed to the real facts in Kennedy, down to the most minute detail, and (certain rants aside) to the real legal arguments the parties are advancing,” Fisher said in an e-mail. “The producers obviously had studied our briefing quite closely – same for the quick blurb about Exxon.” Fisher also said the episode had educational value. Before and during the argument, Shore is advised not to dwell on the facts of the rape or his client’s possible innocence – advice he rebels against. “I thought the episode did an admirable job of exploring one of the paradoxes of Supreme Court practice – namely, that lawyers represent clients who usually have personal goals, but the court is much more interested in resolving legal issues than doing individualized justice,” Fisher said. “Most Supreme Court advocates have been in the position, one way or another, of having to explain to a client that even though a certain result in a lower court is wrong and does an injustice, the Court will not care about that . . . . There are good reasons for that reality, of course, but I do think it strikes some in the public as odd.” Kelley appreciates Fisher’s compliment. A 1983 Boston University Law School grad, Kelley says he, like most lawyers, has been awed by the court ever since. Creating the episode, he said, was “probably my vicarious fantasy. If I had ever appeared before the Supreme Court, they would have had me for a light snack.” The Supreme Court episode of “Boston Legal,” Kelley says, has been a dream of his for years. When he launched “Boston Legal” on ABC in 2004, Kelley swore that “once before we go, we have to get our two lead characters before the Supreme Court.” Now in its fourth season, “Boston Legal” has an uncertain future, so Kelley felt the time had come. “This is one that’s been gestating longer than most episodes,” Kelley said. A remarkably realistic mock Supreme Court chamber, along with a mock lawyer’s lounge, were built on the set exclusively for the episode, Kelley said, though the scene shot in the lawyer’s lounge got cut. “And we called James several episodes ahead and told him to suck it up and get ready.” Kelley explains that given the heavy schedule of taping episodes before now, Spader is usually able to take a lighter load in April episodes – but not this time. “He couldn’t wait to dig into it,” Kelley says of Spader. Kelley says that when he and co-writer Jonathan Shapiro studied the current term’s docket for possible use in the plot, the Louisiana child rape case was the obvious choice. “As much as we wanted to go to the Supreme Court, we weren’t going to do it with a patent case,” Kelley says. “The death penalty, like abortion, is an issue that never goes away.” Kelley credits Shapiro, a former federal prosecutor, with some of the detailed knowledge of the high court reflected in the script. Kelley knows the attack on the court was harsh, but he insists the justices – shielded from the public by the court’s no-cameras policy – need more scrutiny. “Challenging [the court's] sacred cow status appealed to me,” Kelley said. But, he adds, “We obviously had to take some license.” That he did. Any lawyer who ranted at the justices the way Shore did might have been gaveled out of order, if not carried out by police. And male lawyers do not usually try to flirt with Justice Ruth Bader Ginsburg the way Denny Crane does from the counsel table. Afterward, Crane boasts, “Did you see her making eyes at me? She’s hot for me.” Speaking of crudeness, when Crane first talks to Shore about the exciting prospect of arguing before the court, he says the court clerk is “this really pretty woman” who starts court sessions by crying out, “Oh yes, oh yes, oh yes!” Crane adds, “It’s like sex, Alan!” Shore has to break it to him: “It’s not ‘Oh yes.’ It’s ‘oyez.’” And parenthetically it’s the marshal, not the clerk, who opens the session with the ancient cry. Her name, not mentioned on the show, is Pamela Talkin. But the heart of the episode is a full-scale rant against the Roberts Court, delivered by Shore almost as soon as his argument on behalf of the child rapist begins. When Shore begins to tell the court that his client probably did not even commit the rape, the character playing Justice Samuel Alito interjects sternly, “Factual innocence is not something you get to argue.” Shore exclaims, “How silly is that? You’re deciding whether or not to kill someone and his possible innocence is irrelevant?” The “chief justice” has had enough. “Mr. Shore, I don’t like your demeanor, your tone,” he says angrily. “I would remind you of where you are.” That’s what launches Shore into his tirade. “I know exactly where I am,” he says. “And let me tell you, you folks are not as hot as all get-out.” As his colleagues sink in their seats in embarrassment, Shore continues by ridiculing the idea that justices in their confirmation hearings would say they’ve never thought about how they’d vote on abortion. “No perjury there?” He turns to Scalia and confronts him about duck-hunting with Vice President Dick Cheney while Cheney was a name party in a 2004 case before the court (Cheney v. USDC for District of Columbia.) “Congratulations on not getting shot, by the way,” Shore says, but adds, “You didn’t exactly avoid the appearance of impropriety there.” Alito is the next target. “You don’t recuse yourself in terrorism cases, even though your best friend is Michael Chertoff, the head of homeland security.” (Alito and Chertoff were colleagues on the Third Circuit U.S. Court of Appeals.) “It seems to me the Supreme Court of the United States should be made of sterner stuff, am I right?” Then he glances at the Justice Clarence Thomas character and says, “Justice Thomas, at least put down the magazine.” Thomas, startled, says “Hey!” and from the counsel table Denny Crane smiles. He had challenged Shore to get the notoriously silent Thomas to say something – anything – during the argument. But the rant is not over. When the Roberts character advises him, “I really don’t think you mean to come after us,” Shore replies, “Oh, but I do” and he’s off to the races again, accusing the Roberts Court of turning the clock back on civil rights, school segregation, free speech, abortion and campaign finance among other issues. “You’ve been overtly, shamelessly pro-business, making it impossible for some plaintiffs to as much as sue corporations, especially big oil and big tobacco.” And that occasions Shore’s detour into the Exxon Shipping Co. v. Baker, argued in real life on Feb. 27. After Shore attacks the court again, the Scalia character says sharply, “I’ll ask you to leave your personal politics out of this.” Shore’s retort: “And I’ll ask you to do exactly the same! The Supreme Court was intended to be free and unadulterated by politics. It is now dominated by politics!” He even cites an insider statistic about last term. “Of the two dozen 5-4 decisions . . . 19 broke straight across ideological lines. That’s politics.” An attack on Bush v. Gore ensues. But as Shore wraps up his presentation, he returns to the place where many lawyers, even those who harbor similar anger about the court, wind up. “I’d like to say, despite my tone, I have always been, and still am, in enormous awe of this institution,” Shore says. “Elected officials represent the will of the American people, but the Supreme Court has always reflected our soul and our conscience.” In the interview with Legal Times, Kelley said that line reflects his own “enormous awe of the place” in spite of his disagreements with the current court. Shore continues. Referring to the “magnificent” Hermon MacNeil sculpture on the East Pediment of the court’s facade, Shore notes that part of it is meant to symbolize “the concept of justice tempered by mercy.” He concludes, “If mercy truly lives within these walls, within your hearts as justices, as people, you cannot cause this man to be injected with chemicals for the purpose of killing him.”
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