Of all the masterful arguments presented by Alan Shore (James Spader) in the American TV show Boston Legal, his argument in front of the Supreme Court in S04E17 has to be one of the best. Btw, I’ve been binge-watching the show for the past two weeks, as I’ve done here and here with other shows. Although I’m sure that the (real) Supremes would not tolerate monologuing as it appears in this episode, something inside me wishes this could/should happen. Shore (Spader) nails it. Calling out the The United States Supreme Court for their ideological bias–especially the conservative majority that has partaken in giving the world #americant–is brilliant. Actually, having never seen the show before, and having missed all of 1990s and 2000s tv programming in the US, I’m very surprised at the level of political and social criticism that takes place in this show–especially as it was produced by ABC, which is not a bastion of liberal/progressive programming. With that in mind, there is something missing in Shore’s speech (monologue) as he criticises the Supremes. Or let me put that another way. If I had written this episode, I would have included a bit about how conservatives have so ingeniously nit-picked their way to power since the 1970s. It wasn’t all Ronald Reagan, you know. There really are masterminds behind the scenes of the GOP and the Republican party. I for one, having seen all this take place from my expat 30k-foot high-seat, have to take my hat off to republicans. What a job they’ve done taking advantage of the stupidity of a nation. I mean. These sleaze-balls are the ones who pander to the lowest common denominator of the voting constituency of The United States of America… with gusto! They most certainly don’t pander to rational thought or rational governing. They do this by wiggling their way around the enormous political structure that is the US. Not only is there three branches to the federal government but each state has their own branches, their own constitutions, their own justices, etc. By attacking (and conquering) these various layers of politics, they have been able to maintain a stranglehold on the nation. It is an extremely successful from-the-bottom-up political strategy. Issues like taxes, big government, abortion, state’s rights, the 2nd Amendment, etc., are all basically the qualifiers of who gets appointed, who gets to run and, ultimately, who controls society. Because the complexity of this activity is too overwhelming for the stupid masses to comprehend, let alone even bother to ponder, the Republican party has pretty much run the show for well over thirty years. They do this by changing voting districts, i.e. gerrymandering. They appoint politically biased justices controlling legislation and even determining presidential elections. Heck! Conservatives have even found a way to circumvent Roe v. Wade. How? Easy, really. Some state legislatures that are run by conservative politicians (republicans) have changed the laws regarding hospital admitting privileges. Hospital admitting privileges are required of doctors who have private practices or clinics that perform invasive and/or surgical procedures. The admitting privilege is about the doctor, if he or she makes a mistake at the clinic, can then call upon a better equipped hospital to take care of any complications that may arise. That means, if a hospital is run by conservative ideologues, they can simply deny the doctor admitting privilege. Without the backup of a hospital but more importantly without adhering to the law that requires admitting privileges, the doctor cannot perform certain procedures at his/her clinic. It goes without saying that a clinic without hospital admitting privileges will not be able to provide certain services. Thousands of clinics have closed because of this. Pretty tricky, eh! But also well thought out. Indeed. Of course, I forgive the writers of S04E17 for not including my thoughts. They made up for it by having Denny Crane, the epitome of Republicanism, fart and make goo-goo eyes at the Supreme Court.
Below is a transcript of my favourite scene, Season 4, Episode 17, Boston Legal. Alan Shore v Supreme Court. Underlined text from me. Enjoy.
Alan Shore: May it please the court, Mr Chief Justice, currently there are 3,300 on death row in this country. My client is one of only two who didn’t commit murder.
Justice Antonin Scalia: Are you here to give us a box score?
Alan Shore: I’d like to provide a context, Your Honour. In Louisiana 180 men have been prosecuted for child rape since this law went into effect in 1985. Leonard Serra is the only one facing death.
Justice Antonin Scalia: Look, Counsel, Louisiana law permits death for child rape.
Alan Shore: And I would respectfully submit that the law is unconstitutional.
Justice Antonin Scalia: Based on what?
Alan Shore: Based on this court’s find in Coker that the death penalty…
Justice Antonin Scalia: Spoke to the rape of an adult, not a child. Maybe you need to read it again. And even if I were to concede your point, which I don’t, there’s a national consensus now in favour of authorising the death penalty for non-homicide rape.
Alan Shore: Why? Because Louisiana passed a barbaric law, joining the ranks of Saudi Arabia, Uganda, China…
Justice Antonin Scalia: And other States in this country!
Alan Shore: Five! Five States. That’s hardly a consensus. And none of those other States authorise death for first-time offenders as Louisiana does. And it should also be noted in your reliance on a national consensus you look to transcend legislation. Laws passed by politicians mostly around election time when they’re desperate to appear tough on crime. The people who care the most about the welfare of children, doctors and social workers, the people who actually treat abused kids, have filed amicus briefs asking you to strike down this law. Because they know the death penalty in fact does not protect kids at all, but rather it makes it less likely that children, even if they have been abused, will report the crime, especially if a family member is involved. No kid wants to be responsible for a relative being executed! And children often get it wrong! They are uniquely prone to suggestibility and coercion, not that the police would ever be guilty of that, of course. But we already have an epidemic of wrongful convictions in this country. As many as 15,000 a year! Too many of them ending up on death row. And child rape prosecutions are especially unreliable. And now we wanna add the death penalty to make these mistakes irrevocable? Whatever one’s feelings are on capital punishment, and I realise with this court one seems to be for it, you simply cannot ignore the fact that we often screw it up! We convict the innocent. We botch executions. Which is why many States have declared a moratorium on capital punishment. That’s your true national consensus! And yet, here comes Louisiana seeking to expand the death penalty to non-homicide cases. And this is my favourite part, to kill the mentally disabled! Are we serious?
Chief Justice Beyer: This defendant was never officially pronounced disabled.
Alan Shore: But he is just the same, Your Honour. He has an IQ of 70. They’re gonna kill him because there was no official pronouncement?
Chief Justice Alito: The way this goes, Counsel, is we work off a record which you are not free to amend.
Alan Shore: But, by record you simply mean the conviction. Reading of the entire record shows that he denies his guilt, and always has, he has no prior arrests, that the victim never even made the accusation until a full twenty months after the alleged crime, there was no DNA…
Chief Justice Alito: Factual innocence is not something you get to argue.
Alan Shore: Well, how silly is that? You’re deciding whether or not to kill someone and his possible innocence is irrelevant?
Chief Justice Roberts: Mr. Shore! I don’t like your demeanour, your tone, and I would remind you of where you are.
Alan Shore: I know exactly where I am, Mr. Chief Justice. I’m in the Supreme Court of the United States, and let me tell you, you folks aren’t as hot as all get out. (…) Let’s consider your respective Senate confirmations. You all testified under oath that you never actually considered how you would rule on abortion. You must be kidding me! Never gave it a thought? No perjury there? Justice Scalia? You went duck hunting with Vice President Cheney while he was a named defendant in a case before this court. Congratulations on not getting shot, by the way, but you didn’t exactly avoid the appearance of impropriety there? Justice Alito? You were caught hearing a case involving a company you’d invested hundreds of thousands of dollars in. Ha! No conflict of interest there? You also don’t recuse yourself in terrorism cases even though your best friend is Michael Chernov, head of Homeland Security? Seems to me the Supreme Court of the United States should be made of sterner stuff. Am I right? Justice Thomas? At least put down the magazine!
Chief Justice Thomas: Hey! (There is a joke here where Denny Crane wanted Shore to get Thomas to finally say something since he usually remains silent through oral arguments.)
Chief Justice Roberts: I really don’t think you mean to come after us, Counsel.
Alan Shore: Oh, but I do! In your short term as Chief Justice this court with your narrow majority has turned back the clock on civil rights, school segregation, equal protection, free speech, abortion, campaign finance. You’ve been overtly and shamelessly pro-business, making it impossible for some plaintiffs to so much as sue corporations, especially big oil and big tobacco! Somebody’s gotta go after you! Exxon Mobil made over forty billion dollars in 2007. Forty billion! And yet nineteen years after the Valdez oil spill plaintiffs are still waiting to be fully compensated. Justice Scalia? You wanna overturn the verdict altogether because it’s not the company’s fault that the ship’s captain got drunk? But he was a drunk! And they knew it! Perhaps not the best choice to pilot fifty-three million gallons of crude oil through an environmentally sensitive area!
Justice Antonin Scalia: You are getting so far off point.
Alan Shore: 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 interest and big business, and today, hallelujah! You seek to kill a mentally disabled man! I’m curious, as a group, how many executions have you all actually witnessed? (Pause.) I’m sorry that’s… that’s unfair. (Pause.) I’ve seen five. And it is the most inhumane, cruel and unusual hypocrisy of a system that promises to be just.
Justice Antonin Scalia: I’ll ask you to leave your personal politics out of this.
Alan Shore: And I’d ask you to do exactly the same! The Supreme Court was intended to be free and unadulterated by politics. It is now dominated by it. You’re hand-picked by Presidents with ideological agendas, and of the two dozen five-four decisions of your 2006-2007 term, nineteen broke straight across ideological lines. That’s politics! And while you claim to be against judicial activism you rewrote–check that–invented new law to decide a presidential election for God’s sake! If that’s how it’s going to be then at least have the decency to put your names on ballots like the rest of the politicians so that we the people get a voice!
Chief Justice Roberts: Mr. Shore! You have said quite enough. Now you might consider using what little time you have remaining to represent your client instead of your own left wing agenda.
Alan Shore: Yes. (Pause.) I absolutely cannot stand up here and ask anybody to excuse the rape of a child. If it were my child I’d want to shoot the son of a bitch in front of the courthouse. But the more evolved response would be to take into account all the circumstances, and to deliberate and decide whether Leonard Serra truly represents the worst of the worst of humanity for whom we reserve the death penalty. I’ve been advised by my advisors not to talk about Leonard, but I am going to talk about him because Leonard Serra is not in any way the worst. Leonard is not a son of a bitch. Emotionally, intellectually, he is a child! Is this really a person to make an example of? Of all the men Louisiana has prosecuted for child rape since the passage of this law only Leonard has been sentenced to death. Does it strike you as fair that the one guy singled out is the one with an IQ of seventy? Really? (Pause.) Leonard Serra is black. In Louisiana historically it’s been blacks that have been executed for rape in non-homicide cases. In the last hundred years Louisiana has executed twenty-nine men for rape. All were black. On the face of this building it reads, “Equal justice under law.” I would beg you to honour that. Finally, I’d like to say, despite my tone, I have always been and still am in enormous awe of this institution. Elected officials represent the will of the American people, but the Supreme Court has always reflected our soul and our conscience. My conscience and I hope yours simply cannot reconcile executing a mentally disabled man, whether he was officially pronounced as such or not. We have to be better than that! Even if Louisiana isn’t. You know, on the back of this building is that magnificent sculpture, part of which symbolises the concept of justice tempered by mercy. 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 for a crime it’s very possible he did not commit. He asked me to tell you that. That he did not commit it. He felt it was important that you know that. He also asked me to tell you he doesn’t want to die.