Movie Quote of the Day (‘First Monday in October,’ on Group Shots of the Supreme Court)

[The Justices of the Supreme Court are posing for a group photograph.]

Ruth Loomis [played by Jill Clayburgh]: “Should we smile a little?”

Justice Dan Snow [played by Walter Matthau]: “Good God, no. Who'd trust a happy Justice?”— First Monday in October (1981), screenplay by Jerome Lawrence and Robert E. Lee, based on their play, directed by Ronald Neame

Starting in 1917, federal law mandated that the U.S. Supreme Court term would start each year on the first Monday in October. That time of year has rolled around again, so I thought it might be interesting to review how an unusual turn of events took place related to that tradition.

As I discussed in a recent post, Sandra Day O’Connor was confirmed 35 years ago last month as the first female Justice of the Supreme Court. Her nomination threw into turmoil the best-laid plans of Paramount Pictures to release in 1982 a movie that paralleled her situation: a female conservative breaking the all-male monopoly on America’s highest court of appeals.

Instead, to capitalize on the appointment, Paramount ended up moving up the release to late August 1981, before O’Connor began the term on the first Monday in October. The reshuffling didn’t really work: late summer, then as now, is a graveyard for movie releases, particularly those that aspire to reach an audience at least somewhat more serious audience than turns out for summer blockbusters. First Monday in October not only didn’t attract audiences, but even director Ronald Neame regarded it as a case of bad star chemistry between stars Walter Matthau and Jill Clayburgh.

As it happened, that wasn’t the only case of bad star chemistry as it related to this property. The same disease nearly killed the original play at birth.

In writing this post, I found in a local library The Selected Plays of Jerome Lawrence and Robert E. Lee, an anthology by the playwrights responsible for Inherit the Wind and Auntie Mame that also includes First Monday in October. Idly looking through the production notes of the play, I discovered that, before it opened on Broadway in October 1978 or even at the Kennedy Center in Washington nearly a year before, the play had premiered at the Cleveland Play House in October 1975, with none other than Jean Arthur playing trailblazing justice Ruth Loomis.

“What were they thinking in casting her?” I wondered.

Let me explain. Arthur, along Irene Dunne, Claudette Colbert and Katharine Hepburn, formed a quartet of actresses who took the romantic comedy to its zenith in films of the Thirties and Forties. She especially worked well under director Frank Capra, in Mr. Deeds Goes to Town and Mr. Smith Goes to Washington, where her pert blond locks and what has been called her “carbonated” voice made her the embodiment of the wised-up career woman who falls for the dewy-eyed male idealist. She received an Oscar nomination for The More the Merrier, and probably deserved even more recognition from Hollywood. Many people—myself very much included—regard her as among the shining talents of her time, and can sit back happily when one of her films comes on, confident that a great performance is coming.

Uncomfortable with Hollywood’s publicity machine, which called for interviews and red-carpet appearances, the reticent Arthur was even worse onstage. In his autobiography, The Name Above the Title, Capra discussed how her stage fright was so acute in the mid-1940s that it forced her to leave the Garson Kanin comedy Born Yesterday in its out-of-town tryout, allowing Judy Holliday to assume the role that made her famous.

Arthur appeared in her last film, Shane, in 1953, and a short-lived TV comedy, The Jean Arthur Show, in 1966. So far as I knew, she never had taken on another role until her death in 1991.

So, with these rare stage appearances—and even those enough to give pause—what was Arthur doing (and in her mid-seventies, at that) in a role written with her in mind? The answer is that Lawrence had gotten to know and like her, and however much due diligence he had performed (including with Capra and Kanin), it wasn’t enough to disabuse him of this impression. Only close work with her could do that.

It did. To her credit, Arthur came to rehearsals with her lines memorized. But that only angered her all the more when aging and ailing co-star Melvyn Douglas (with whom she had worked in the 1940 romantic comedy Too Many Husbands) needed more time to master his lines and character.

Nevertheless, the pairing of these two old pros from Hollywood’s golden era was enough to produce sell-out audiences for the play’s opening. If only that could have eased Arthur’s mind!

But reviews were not particularly kind about her performance, and her longtime anxiety about performing in public manifested itself again. Altogether, it was probably a blessing to cast and crew that the show’s producers announced that Arthur would leave the production before the end of the run due to a “viral infection.”

Despite the debacle related to Arthur, producer Roger L. Stevens thought the play still worthwhile to mount at the Kennedy Center. Arthur’s departure actually freed Lawrence and Lee to rethink the role of Justice Loomis. Casting a considerably younger actress in the role would deepen the conflict with the curmudgeonly liberal Justice Dan Stone (modeled in part on the long-serving justice William O. Douglas). Jane Alexander—more than three decades Arthur’s junior—brought a dimension to the role that Arthur simply couldn’t, and her pairing with Henry Fonda, though in a brief run, brought the two actors considerable acclaim. 

The play continues to be performed in regional theaters, where it gives its lead actors plum roles--and audiences the hope that the growing respect between the play's two ideologically opposed fictional justices could actually occur in our terribly divided political environment.

Photo of the Day: ‘Sandra Day O'Connor,’ Exhibit Hall, Supreme Court, Washington DC

“Society as a whole benefits immeasurably from a climate in which all persons, regardless of race or gender, may have the opportunity to earn respect, responsibility, advancement and remuneration based on ability." —Sandra Day O'Connor, The Majesty of the Law: Reflections of a Supreme Court Justice (2003)

I took the image accompanying this post—a bust of Associate Justice Sandra Day O’Connor in the Exhibit Hall of the U.S. Supreme Court—while visiting Washington, DC last November. But now seemed an appropriate time to post about it, as today marks the 35^th anniversary of the unanimous confirmation of her nomination to the highest court in the land by the U.S. Senate.

The O'Connor-related artifacts surrounding this bust garnered a great deal of visitor attention in the Exhibit Hall—not surprising, because of her status as the first female Supreme Court justice. But it also testifies to the larger ideal advocated by O'Connor in the above quote. In a building where “equal justice under law” is engraved on the front, her iconic position results from Americans’ hard-won belief in equal opportunity for all.

Just how hard-won it was for O’Connor can be seen in her post-Stanford Law School entrance into the job market. Though finishing with the third-highest average in her class, the best offer she received from California’s biggest law firms was a job as a legal secretary. (Nearly 30 years later, a partner in that latter white-shoe firm, William French Smith—by this time, Ronald Reagan’s Attorney General—phoned to tell her of her nomination to the Supreme Court. "Oh, I guess you must mean in a secretarial position!" she joked.)

Even after nearly a decade on the Supreme Court, O’Connor hadn’t forgotten the sexism that hindered women’s advancement in the legal field. “We have a long way to go before women are on an equal footing with men," she told a conference on “Women in Power” in November 1990.

A few more points about O’Connor:

*Her nomination was a shrewd political move by Ronald Reagan—it not only fulfilled his pledge to name a woman to the court, but put Democrats in the near-impossible position of opposing a trailblazer.

*Her personal friendship with fellow Arizonan Barry Goldwater and governmental experience outside Washington helped persuade Reagan that she would be reliably conservative and pro-states’ rights.

*Her pre-Court background made O’Connor something of an anachronism. While both Republicans and Democrats have, in the past few decades, selected nominees whose backgrounds have rarely extended beyond the legal realm (federal judges have been most popular), O’Connor worked in all three branches of government: executive (Assistant Attorney General of Arizona), legislative (first female majority leader in any state senate), and judicial (the Arizona Supreme Court of Appeals).

*One of her last dissents, in the 5-4 Kelo v. City of New London decision, was in keeping with much of the justice’s prior career in blurring bright lines between liberal and conservative ideologies, as she chastised the majority for handing the well-heeled “disproportionate influence and power” over individual property rights through their approval of eminent domain: “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

Scalia’s Aria of Betrayal

“Every court has its diva. Silvio Santamaria, 250 pounds, gel-slicked-back jetblack hair, former boxer, Jesuit seminarian, father of thirteen children, Knight of Malta, adviser to the Vatican on international law and even occasional guest advocatus diabolic in canonization cases….He was brilliant, with a wit as caustic as drain cleaner; good company if you were in his camp and look out if you weren't. Silvio Santamaria didn't take yes for an answer. He didn't disagree—he violently opposed. Didn't demur—he went for your throat. Didn't nitpick—disemboweled you and flossed his teeth with your intestines. First-timers appearing before the Court for oral argument had been known to wet their pants and even faint under his withering questions and commentary. His written dissents were of the type described by the press as ‘blistering’ or ‘stinging’….He gave fiery—and rather good—speeches that had his audiences stomping on the floor and standing up on their chairs calling for—demanding!—a new Inquisition.”— Christopher Buckley, Supreme Courtship (2008)

Sure, Hatchette Book Group included in this novel one of those pro forma “any resemblance to actual events, persons,” etc., disclaimers to ward off litigious objects of fictional derision. But really, can there be any doubt whom master satirist Christopher Buckley had in mind in his acidic portrait of Associate Justice Silvio Santamaria? I can’t remember him leaving such unmistakable clues to any other real-life counterpart. (Even in No Way To Treat a First Lady, he gave his assertive, high-decibel First Lady with a wayward hubby—“Lady BethMac” to the tabloids—looks that inspired comparison to Catherine Zeta-Jones.)

But that “diva” line alone is a dead giveaway that Buckley has within his sights Antonin Scalia, who shares with fellow Supreme Court justice Ruth Bader Ginsburg a love of opera—and, as far as ideology goes, very little else.

These days, Scalia appears ready to break out at any minute into a number from Verdi’s Otello—“Dio! mi potevi scagliar tutti i mali!” ("God, you could have thrown every evil at me”) — in which the title character, in the midst of torment, asks the Almighty why he is being afflicted in this manner.

Pointed dissents can be excellent means for some justices to achieve immortality, as the cases of Justices Oliver Wendell Holmes Jr. and John Marshall Harlan. But Scalia’s dissents can only be measured on a different order of magnitude: the Richter scale. They create not footsteps in the sand for later justices to follow, but entire craters where working relationships and conservative influence crumble.

You don’t win friends and influence people—prerequisites to writing majority opinions—if you essentially publicly call out colleagues on the high court as idiots—especially in decisions that will be read by hundreds of thousands of lawyers worldwide for generations to come.

As the latest term of the Supreme Court of the United States (SCOTUS) ends, Scalia sounds not merely encircled but friendless and hysterical. The 5-4 majority that sanctioned same-sex marriage in Obergefell v. Hodges, he proclaimed, amounted to a “judicial putsch.” Not done with invidious comparisons with Nazis, he went after the decision’s style, which he pronounced “as pretentious as its content is egotistic.”

Justice Anthony Kennedy, author of the majority opinion, surely felt his ears burn when he heard this footnote read in Scalia’s dissent: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”

Give Scalia this: that sentence from Kennedy’s opinion does slip, slide, and flop around some. But Kennedy, for all his offenses against sound and meaning, also learned a skill in elementary school that has eluded Scalia in three decades on the high court: how to get to five, the magic number needed to achieve a majority.

Chief Justice John Roberts has learned not only this elementary arithmetic, but also astronomy, the more advanced discipline of bringing distant objects into close view. He may not have turned out to be the honest umpire he cited as his ideal at his Senate confirmation hearings, but he has shown definite signs of knowing how far he can go before the legitimacy of the court’s rulings is questioned.

This long game is lost on Scalia. Oddly enough, one of America’s most famous opera buffs is politically and personally tone deaf. It seems never to have occurred to Scalia that, far from buckling under to a solid liberal wing of the court, Roberts might be jumping aboard the majority express, only to hijack it for his own purposes.

The chief’s initial preservation of Obamacare back in 2012, for instance, was built on the premise that the health care individual mandate was a tax—a notion that the administration was not keen on accepting. Moreover, by refusing to strangle it while still in its toddling stage, he gave the President time to proceed with the rollout of the program’s Website, a disaster that damaged Obamacare’s reputation and Obama’s approval ratings.

But Scalia could see none of this, implicitly taking his boss to task in a dissent for saving the controversial legislation by transforming it through reinterpretation: “We should start calling this law SCOTUScare.”

These are just the latest in a series of splenetic sputterings about colleagues’ opinions. There’s a whole Website devoted to these “Scalia-Isms,” in fact—and I believe it gets nowhere close to the full number. That’s because Scalia is to judicial invective what Niagara Falls is to water.

After awhile, the name-calling begins to blur together, in a crazy kind of way. In fact, Tim Murphy of Mother Jones invented a “Scalia Insult Generator” that allows readers to mash these up and create new ones of their own.

Right-wingers, enthralled by the tenor booming out these insults, have lost sight of how deeply counterproductive these are. It’s one thing to write, as Scalia did a few years ago about a Sixth Amendment majority opinion by Sonia Sotomayor, that she had rendered the high court “the obfuscator of last resort”—she was, after all, appointed by a liberal Democrat and has voted in a way that could hardly have ever displeased the President.

But it’s another thing to go after fellow Republican appointees. Roberts chuckled for the cameras when Scalia read aloud the ‘SCOTUScare” barb. But other justices tapped for the court by conservative GOP Presidents have not been as equanimous.

The most consequential was Sandra Day O’Connor. Prior to the 1989 Webster case involving abortion, she had written critically about Roe v. Wade. The particular circumstances of Webster, she noted in the majority decision, did not warrant a more definitive ruling at that point, but there would be time for such a reconsideration.

Annoyed that she had not taken the bull by the horns immediately, Scalia, in a separate opinion, assailed O’Connor’s position as “irrational” and one that “cannot be taken seriously.” As Linda Greenhouse demonstrated in a blog piece for The New York Times four years ago, the court’s only female justice at the time--and the one whose swing vote would later devolve upon Kennedy--showed what she thought of that remark three years later in Planned Parenthood v. Casey, when she provided the critical fifth vote to leave Roe undisturbed.

For the sake of a couple of peevish one-liners, Scalia had alienated the justice who could have overturned a decision that had been coming under increasing political and intellectual assault. He had lost a critical battle in the abortion battle he cared so much about. 

Kennedy is another matter. His stances on abortion and gay rights notwithstanding, there is very little else separating his conservative opinions from Scalia's. (Gays and lesbians better not cheer that loudly for Kennedy's latest opinion on same-sex marriage--if they yell too vigorously, they'll be breathing some of the air likely to increase in the wake of the justice's vote with--again!--a 5-4 majority to strike down the Environmental Protection Agency's national standards for mercury pollutants from power plants.) 

It shouldn't take that much to turn Kennedy. An example of how Scalia could have done so was provided by his onetime Court colleague William Brennan. Even when Richard Nixon, Gerald Ford and Ronald Reagan turned the Supreme Court decisively away from the liberal rulings of the Warren Court with new appointees, Brennan continued to cobble together improbable majorities through legendary persuasive powers.

Yet Scalia remained unchastened by his defeats. As New York Magazine’s Jennifer Senior noted recently, “the more isolated he gets, the more extravagant his rhetoric becomes.”

Roberts seems to want to become a 21^st-century counterpart to John Marshall, a Chief Justice who, through intellect and power of personality, aims to block a President of a different party who does not share his view of the role of the federal government. In his health-care rulings, Roberts has also absorbed one of the principal lessons of the career of that wily predecessor: pick your fights when it matters most, and only then, lest you threaten the legitimacy of the court of last resort.

Scalia, on the other hand, seems to be taking the path trod by Samuel Chase, Marshall’s fellow Federalist appointee to the bench. The blunt Associate Justice, dismayed by the election of Thomas Jefferson, gave a Scalia-like warning that America was descending into “mobocracy.” For these and other pronouncements less judicial than political, Jefferson encouraged Senate impeachment of  Chase. 

While Chase survived the maneuver, his reputation did not. He is now known to history as an intellectually gifted justice who spoiled his legacy through nakedly partisan stances and intemperate language.

Sound familiar?