You would not think that a constitutional law argument before the justices of the Supreme Court the stuff of engaging nights in the theatre. Stories of lawyers presenting their legal positions and members of the Court challenging and clarifying what they hear may be the high light of a bar association dinner but plainly for laymen the prospect is an invitation to snooze.
The justices themselves have so little confidence in the entertainment value of their public face that the Court continues to resist televising its proceedings. They fear oral argument will be too technical and that the assumptions and premises behind those arguments are so opaque that the public will receive an unfavorable impression of what the Court does and how it does it.
Even worse, there are justices who believe that if arguments are televised, some of their colleagues will play to the crowd, either dumbing down the questions they ask or show boating for the camera. All of this adds up, some argue, to a Court that could become even more politicized than it is; enough reason to override any benefits in public education likely to come from a more transparent justice system.
This brings me to the Elevator Repair Service production at New York's estimable Public Theatre of Arguendo, a staging of the oral argument before the Supreme Court in Barnes v Glen Theatres, a case brought by exotic dancers claiming the First Amendment barred an Indiana law banning public nudity that would have required them to wear pasties and g-strings.
A few years back the Elevator Repair Service and its director John Collins entranced the theatre world by presenting actors reading the exact text of Scott Fitzgerald's The Great Gatsby while acting it out in what the Public Theatre's artistic director Oskar Eustis accurately calls "wildly inventive" settings. Everybody loved Gatz for its novelty and for the way it respectfully invigorated a beloved classic. Similar blending text with action rendered varied results in Elevator Repair Service productions of Hemingway's The Sun Also Rises and Faulkner's The Sound and Fury.
According to Collins while researching copyright issues he became obsessed with listening to Supreme Court arguments, the audio of which were available online. He finally stumbled on the Barnes case perhaps because it combined the theatricality of the courtroom and the obvious visual opportunities of depicting some form of strip tease.
I bought tickets for the current New York production as soon as I heard of it. A former Supreme Court advocate I teach oral advocacy skills as part of a course called constitutional litigation at the Northeastern University School of Law and Barnes has long been on the list of assigned cases for my course on the first amendment.
What did I expect from a play based not so much on the story of an important law case but on the particularized verbal event that is a Court argument in such a case? Plainly the Company wasn't interested in turning out teaching materials for those like me who train advocates but, then, Collins was advised by all-star legal journalist Emily Bazelon and law professor and Broadway producer Nicholas Rosenkranz. I could only assume that he chose the text of Barnes v Glen Theatres out of hundreds of intriguing oral arguments before the Court because something about the subject matter intrigued Elevator Repair Service. After all if fidelity to a text is your lodestar there must be something in the text that sings to you.
Alas, while the production presents the legal arguments of two knowledgeable advocates, it is replete with jargon and enough insider's free expression law that even many lawyers in the audience were grabbing smart phones to do some instant Googling. Collins has chosen neither to dignify the ideas expressed by the lawyers nor use them as a take off point for a serious exploration of a culture that debates at the highest levels the constitutional value of public nudity before consenting adults.
That would all by perfectly ok if the result was really funny but too often the text has been saddled by distracting black robbed justices swivel chairing around the stage, enough voices overriding voices to suggest a confusing Tower of Babel in what for all its faults is a process that in the real world aims at clarity and a chaotic display of less than beautiful frontal nudity. Near the end, Justices Ginsburg and Rehnquist have a to do over the robes worn by a female justice and by a Chief Justice that suggests pretension at least on Rehnquist's part but this set piece has nothing to do the Barnes case or "for the sake of argument" that is the core meaning of "arguendo." This kind of theatrical noise always suggests a play that has lost its direction. The only justification for it seems to be an effort to take down the oral argument form by exposing that it too is show biz.
The point that even subtle courtroom argument is a kind of artistic performance is not an insight many lawyers will dispute. I was told early in my career that skill in advocacy could be enhanced by studying Stanislavski on how actors prepare but even a brilliant cast, especially in mimicking particular justices, isn't funny enough to salvage the text of the argument as humor or to respect it as an opportunity to learn something.