May 31, 2012 | by Joshua J. Friedman
Here’s how I fell in love with the Supreme Court: riding a Boston city bus, earbuds in, listening to the justices’ voices. As the court debated a Chicago loitering law—a law that allowed the police to arrest not only gang members but anyone with them for lingering with “no apparent purpose” in a public place—I stared out the window at the people passing on the street. It felt provocative to overlay a high-minded argument about society on top of society as it actually existed, and I wondered whether I would hear any of my world reflected back at me from the court. Then Justice David Souter spoke, forcefully. “I'm still bothered by the seemingly open-ended possibilities of determining what is or is not an apparent purpose,” he said. “Some people, for example, with nothing better to do like to sit and watch, or stand and watch, the cars go by. That’s a purpose.” I was hooked.
Here’s how you might fall in love with the Supreme Court: sitting in a dark theater, watching two actors facing one another in desk chairs on a minimally dressed stage, reenacting an oral argument. This is Arguendo, a new play from Elevator Repair Service, still being developed in workshop but presented in four early performances on May 17 and 18 at a sixty-seat black-box theater in Brooklyn. Elevator Repair Service is best known for Gatz, a theatrical endurance test in which F. Scott Fitzgerald’s The Great Gatsby is performed in its entirety over the course of six hours. Arguendo, only forty minutes long in its present incarnation, rewards a different kind of persistence. It challenges its audience to enter in the middle of a conversation—after written briefs are filed but before an opinion has been issued—ignorant of the law, of legal language, and of the justices. We are asked to ride out that ignorance with the promise that it will yield to wisdom and delight.
To reward this effort, the director, John Collins, has chosen to stage a relatively juicy case: Barnes v. Glen Theatre, in which two nude-dancing establishments in South Bend, Indiana—the Glen Theatre and the Kitty Kat Lounge—sued to oppose a state law requiring that dancers cover themselves with, at minimum, pasties and G-strings. When the case reached the Supreme Court, in January 1991, the question the court faced was whether Indiana’s law violated the free expression guaranteed by the First Amendment. In Collins’s current staging, the arguments are reduced to a discussion between two figures, one playing an attorney (replaced by the opposing attorney halfway through), the other the entire panel of justices. You can keep track of which justice the latter actor is channeling by glancing at a screen above the stage, where the speaker’s name is projected, along with a perpetually shifting (and rather distracting) series of images with playful relevance to the conversation. The actor's delivery approximates the tone and pace of a real oral argument, and the lines are taken verbatim from the transcript.
Is this theater? It is, at the very least, theatrical, in the way of the best intellectual debates: impassioned, witty, quirky. Oral arguments begin with an attorney’s opening statement, but over the past twenty-five years or so the discussion has become so lively that an attorney is unlikely to get through more than a few sentences before being interrupted by a question—as here, early in the play:
MR. WAYNE UHL: In Indiana under Indiana code, Section 35-45-4-1, a person cannot leave his home naked and walk down the street … He would get in trouble, Your Honor, if he walked into a public place such as a bar or a bookstore without his clothes on. Once inside the bar, he could not walk naked up and down the aisles in the bar, nor could he sit down at a table without his clothes on, nor could he stand up on the bar or on a stage at the front of that public establishment without his clothes on.
JUSTICE ANTONIN SCALIA: He can evidently sing in an opera without his clothes on.
And so it begins. Uhl (pronounced “yule”) falls just short of making it to his first point: that the opposition illogically asserts a legal difference between moving one’s body on the street or in a bar and doing the same onstage. But Scalia already wants him to explain another distinction: why Indiana should permit nudity in an opera but not in a strip club. Is it, he asks, because of “the good-taste clause of the Constitution?” How does one draw the line “between Salome and the Kitty Kat Lounge?” Uhl answers that the salient question is whether the conduct “communicates a particularized message or an idea.” Justice Anthony Kennedy then asks whether nude dancing might communicate “a particularized message and an idea of sensuality”? Perhaps, says Uhl, but the plaintiffs have not proved that here.
This is how the justices work: testing legal theories by searching for their boundaries. It turns out to be an amusing occupation. Sometimes it is illuminating, as when Justice John Paul Stevens asks Uhl whether the case would really be any different if the dancer posted a sign onstage that identified her as a member of a nudist colony “and then said, ‘I'll illustrate to you how nice it is to be nude.’” Sometimes it is just baffling, as when Justice Kennedy hypothesizes the case of a nude dancer hired to attract business at an “adults-only car wash.” Justice Scalia, famously the chief comedian of the group, gets a big laugh in both 1991 and 2012 for the following attack on the opposing attorney, Bruce Ennis:
JUSTICE SCALIA: Mr. Ennis, nobody is stopping her from dancing. Suppose you win this point: dancing is expression. They have not stopped her from dancing. They have stopped her from going about nude, whether dancing or doing anything else, just as I suppose they have murder laws in Indiana which prevent people from killing people, whether in the course of dancing or not. Now, would one have to analyze the Indiana murder law as valid or invalid under the First Amendment if the murder happens to be performed in the course of a public-performance dance?
I am a sucker for wit, so I am liable to spend an entire argument with my loyalties ricocheting back and forth as I am persuaded by one view, and then a contrary one. The Supreme Court only takes close cases, after all, and the justices carefully craft their questions to indirectly lobby each other. Once upon a time, arguments were duller, with fewer questions and long pauses between them. That changed when William Rehnquist became chief justice, in the late 1980s, according to the New Yorker’s legal correspondent, Jeffrey Toobin, who appeared for a Q&A session with John Collins and the Slate legal reporter Emily Bazelon following the performance I attended. Rehnquist discouraged informal communication between the justices outside of court; suddenly the stakes for oral arguments were much higher.
To most people, the Supreme Court is a mystery—and no wonder, when it does so much of its work out of the public view. Oral arguments make a fine advertisement for the American constitutional system, not to mention a decent do-it-yourself education in the law. Listen enough and you pick up concepts, precedents, and terminology (arguendo, for instance, means “for the sake of argument,” as in “assuming, arguendo, that we accept your premise”). You also get a sense of the justices’ distinct personalities and preoccupations, the way that some are more likely to ask sincere questions to fill in gaps in their understanding, while others use questions as gambits to prove arguments foolish. As with a good TV show, you keep a mental catalogue of your favorite moments—the time when a lawyer kept calling the justices by the wrong names or when Justice Clarence Thomas broke his silence of several years to lecture a dumbstruck attorney about the harms of cross burning. And as with a good TV show, you’re always sad to lose a favorite character.
So you feel love blossoming. How to express it, with the premiere of Arguendo still a year off? First, listen to some of the thousands of hours of recordings digitized and posted online by the Oyez Project. But maybe that isn’t enough? Maybe you’re longing to slip on the robe yourself? A similar impulse led me to start hosting Supreme Court parties several years ago. A dozen or so open-minded friends agreed to attend. With transcripts of the latest oral arguments in our laps, we divvied up the parts. (The shyest person in the room was cast as Justice Thomas.) Scalia puffed himself up like Falstaff; Stephen Breyer affected a professorial twinkle. Sure, it was community theater, but what a show.
Joshua J. Friedman, a former editor of the Atlantic and Boston Review, is a writer in New York.