(from left to right) Actors Susie Sokol, Vin Knight, Mike Iveson, and Ben Williams in the play Arguendo at the Public Theater/LuEsther Hall. (Photo: Joan Marcus)
It’s a U.S. Supreme Court ­argument like none you’ve ever seen: justices scooting around on their chairs like whirling dervishes, advocates pushing their lecterns back and forth, one lawyer even orating and dancing — briefly — without benefit of clothing. At one point, two justices hold a side conference that looks a lot like making out.
That is how the play “Arguendo,” which opened April 1 and runs through the end of the month at the Woolly Mammoth Theatre in Washington, holds its audience through the inevitably dull stretches of a high court argument. The play’s script, after all, is drawn verbatim from the 1991 argument in Barnes v. Glen Theatre, a dispute over nude dancing.
Talk about transparency: Director John Collins is not waiting for cameras to be permitted in the court chamber to bring an oral argument to the masses. Unlike some justices and lawyers who have ­suggested the public is not savvy enough to understand an oral argument, Collins is convinced ordinary people can get it.
“On my crusade to tell everyone how understandable the Supreme Court is, I wanted to be able to say, ‘I showed you the thing exactly how it was, and look what you got out of it,’ ” said Collins, founder of the experimental theater company Elevator Repair Service.
“Arguendo” has already had successful runs in four cities including New York. But Collins acknowledged that coming to Washington was especially nerve-wracking, in part because of the high concentration of lawyers in the city. He was especially on edge about nine lawyers in particular; he has invited all the high court’s justices to attend and has heard that at least one, Justice Ruth Bader Ginsburg, plans to do so.
“Sure I’m nervous,” Collins said in an interview before the play’s D.C. opening. “It would have been terrifying to do it here first.” Sure enough, the Washington audience is proving a tough crowd. During a postperformance panel discussion last week, an audience member said some of the on-stage antics left him thinking that the play was “mocking the court.”
Collins pleaded not guilty, but insisted the play’s nudity was “kind of an imperative” because the subject matter of the case. A nude female dancer would have been too obvious, though, so the actor who sheds his clothes toward the end is Mike Iveson, who portrays Bruce Ennis Jr., the legendary lawyer who argued for the Indiana theater challenging the ban on public nudity.
Ennis’ star role has added an emotional connection between the play and the Supreme Court community. Widely viewed as one of the best Supreme Court advocates of his generation, Ennis died in 2000 at age 60 of leukemia. The play is stirring memories among his friends.
“Bruce would have been thrilled to see the play,” said David Ogden, a partner at Wilmer Cutler Pickering Hale and Dorr. Ogden, a former clerk to Justice Harry Blackmun who also served as deputy U.S. attorney general, worked at Jenner & Block with Ennis during the early 1990s. He was part of Ennis’ team for Barnes. “I had two great mentors in my professional life: Justice Blackmun and Bruce,” he said. “I think about Bruce all the time.”
Sitting U.S. solicitor general Donald Verrilli Jr. and Jenner partner Paul Smith also worked closely with Ennis at Jenner.
‘THE SINGLE BEST ORAL ARGUMENT’
Laura Handman, co-chairwoman of Davis Wright Tremaine’s appellate practice, recalled “the single best oral argument I have known, a face-off between the two most gifted advocates of my generation, Bruce and Seth Waxman.” The 1997 case was ACLU v. Reno, which resulted in a win for Ennis with a decision he later described as “the birth certificate for the Internet.”
When Ogden heard about “Arguen­do,” he was troubled at first that Ennis would be portrayed in the nude. But that concern soon went away. Ennis’ widow, Emily, also heard about the play, saw it in New York and “really liked it,” according to Ogden. In addition to being a fierce and brilliant advocate, Ennis, formerly the legal director of the American Civil Liberties Union, had been something of a free spirit. Emily Ennis and Handman will co-host a reception before one of the performances.
Collins said he was drawn to the idea of making a play out of a Supreme Court argument during the company’s production of “Gatz,” a seven-hour dramatic reading of “The Great Gatsby.” While considering the copyright issues involved in that play, Collins said, he listened to the audio of the 2002 Supreme Court argument in Eldred v. Ashcroft at the Oyez web site.
“I got really excited when I learned you could listen to the audio,” said Collins, describing himself as a Supreme Court junkie since his youth as a debater in Vidalia, Ga. He began looking for an argument that could be turned into a play, recognizing that some Supreme Court cases are “totally opaque.” But he found that First and Fourth amendments were often vivid enough that “you really can follow what is going on.”
The Barnes case fit the bill: The argument was full of proclamations, laughter and hypotheticals aimed at determining whether that form of dancing had expressive content worth protecting under the First Amendment. Justice Anthony Kennedy’s fanciful example of a nude dancer beckoning customers to an “adult car wash” was one of many memorable moments.
With some high-tech graphics and the actors doing a lot more than just reading the transcript, the play took on more theatricality. It has drawn good reviews, with The New York Times suggesting that, after “Arguendo,” the company could probably make good theater out of “the Pittsburgh phone directory.”
Contact Tony Mauro at firstname.lastname@example.org.