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Look closely and top court’s drama comes to light

SHARE Look closely and top court’s drama comes to light

Reporter Joan Biskupic set off a nice flutter recently when she broke the story about a TV sitcom to be built around the Supreme Court. The weekly CBS show is to be called "First Monday." It will debut on Jan. 15.

Writing in USA Today, Biskupic provided some details. The role of the chief justice will be played by James Garner. James Karen, who bears a startling resemblance to the late Chief Justice Warren Burger, will play an associate justice. We reporters began to make our own nominations for the cast: Julia Roberts as press officer Kathy Arberg, Robert Redford as chief clerk Bill Suter, Glenn Close in the chair of Justice Ruth Bader Ginsburg. What a series!

The producers' idea is "to lift the red velvet curtains of our most mysterious institution . . . and explore the lives of the justices and their law clerks."

This will take some prodigious doing. The seven men and two women now on the high court are entirely typical of the hundred justices before them. With the exception of Antonin Scalia — let us face it — they're an inconspicuous lot. We have no showboats in a class with Presidents Johnson, Nixon and Clinton. Nothing at the court matches the gaiter-busting oratory of Fritz Hollings on the Senate floor. In fair weather, the chief justice of the United States — whatever is the fellow's name? — Rehnquist, likes to walk around the block at East Capitol and Maryland. Nine days out of 10 not a soul recognizes the gentleman and says hello.

The court likes it that way. Some of us wild-eyed radicals in the press room have urged that oral arguments be televised. After all, C-Span covers Congress and everybody in TV covers the White House. Why not the court? A few years ago we asked the court just to consider the idea. Our most encouraging response came from Justice David Souter. He said that oral arguments would be televised "over my dead body."

On the opening day this year we heard Case No. 99-1786, Great-West Life v. Knudson. It involved the Employee Retirement Income Security Act, a statute rich with dramatic opportunity. The producers of "First Monday" would have been entranced. Tensions mounted, minute by minute, as distinguished counsel pleaded with the court. Their eloquence literally approached the unbearable.

Paul R.Q. Wolfson, assistant to the solicitor general, said several kinds of equitable relief are available. It was a challenge. Justice Stephen Breyer leaped into the fray. Eyes flashing, his voice rising, Breyer said:

"I've looked up every one of those, and having looked up every one of them, our research so far shows that there is no category, specific, restitution, anything else, that this would count as equitable, because in each instance, they would have said that there is an adequate remedy at law and there is no basis for a constructive trust, because this is not funds that come out of the trust."

I ask you, is this the stuff of high drama or what?

Justice Scalia is known for his penetrating questions to counsel. Wolfson had suggested that Section (a)(3)(A) might be limited to prohibitory injunctions as opposed to mandatory injunctions. Another section, (3)(B)(ii), also deals with enforcement. Scalia pinned down the government's lawyer like a bug in a paraffin tray: "Well," he softly thundered, "do you think — do you think — an injunction can issue under (B)?"

A ripple of excitement spread through the packed courtroom. Guards alertly halted what might have become an unseemly demonstration. Wolfson would not be intimidated. He snapped back, "I think specific enforcement of a term of the plan, which is again a remedy which was typically available in a court of equity, would classically fall under that situation." Voila!

Not all cases rise to such heights of emotion. Most of them are humdrum affairs — Roe v. Wade, Bush v. Gore, Brown v. Board of Education. Things like that. In truth, when the court drops a blockbuster, the written opinion instantly becomes the biggest show in town. In recent years we reporters have reveled in fascinating cases — genuinely fascinating cases — involving free speech, religious exercise, search and seizure, sexual predators, and the government's awesome power of eminent domain. You will surmise correctly that I love it.

Justice Oliver Wendell Holmes, who served for 30 years on the court, saw the institution clearly: "We are very quiet there," he said, "but it is the quiet of a storm center."

Lights! Sound! Camera! Let us hope for some plausible action.


E-mail to kilpatjj@aol.com.