I also got hung up on the fact that in terms of legal significance, Barnes is an old case, and it’s not clear where it led. The court allowed South Bend to keep its law requiring pasties and G-strings. As Justice David Souter put it, "Nudity itself is not inherently expressive conduct." But there was no majority of five for one rationale for upholding the law. The Supreme Court took a second nude dancing case in 2000 and came back with a similarly inconclusive result. Since then, lower courts have struck down and upheld nude dancing ordinances, often based on the strength of the evidence cities present about the secondary effects of strip clubs—essentially asking the question, Do they ruin the neighborhood? When I asked my intern at the time, Katie Henderson, to figure out what had happened in this area of law since Barnes, she did not come back with a nice, neat answer. We sent her memo off to John feeling like killjoys.
But John was indefatigable. His next request: Could he bring Elevator Repair Service to Yale Law School for a day? They wanted to meet with Dean Robert Post and Linda Greenhouse, the Knight Distinguished Journalist at the law school and the former Supreme Court correspondent for the New York Times.
So the company came to New Haven, Conn., and I sat in on their meetings, feeling unreasonable pride. The theater people knew some law; they wanted more. More context and more theory. Does it make sense to think of conduct as separate from speech and expression? What about all the ways in which those categories bleed into each other? What about the female sexuality of the nude dancers in the case—how did that affect the justices’ thinking?
A couple of months later, I saw the production again. It had changed drastically since my earlier viewing. The actors playing the justices now swiveled crazily on chairs, offering some visual whimsy to lighten the jurisprudential mood. The play now folded in a news conference with a Kitty Kat Lounge dancer (with an actress playing her, I mean). She complicated the legal argument: She saw her dancing as expressive, yes, but she was also doing it to earn a living. An amazing data visualization, by projection designer Ben Rubin, took over a screen behind the actors, zooming in and out of the relevant case law like some kind of sentient microfilm reader, giving the audience a taste of the texts the lawyers and justices were calling upon. They were doing it: They were bringing the court to life by embracing, rather than editing out, all its obfuscation and oddity. The play tapped into the wonderful absurdity of the arguments and the justices themselves. There are several comical inquiries into the best practices of strip clubs and even more comical hypotheticals. “So that’s a First Amendment case, if you kill someone in the course of dancing?” Justice Antonin Scalia asks one of the lawyers sarcastically.
The play is called Arguendo, one of those Latin lawyer-speak words meaning “for the sake of argument.” It opened at the Public Theater in September, and Ben Brantley gave it a glorious whirl in the New York Times. Arguendo “is so wittily inventive that it makes you think that the Elevator Repair Service might as well have a go at the Pittsburgh phone directory next,” he wrote. And I especially loved this line: “The vocal and physical tics of the Supreme Court justices, in particular, are so stylized and magnified in ways that force us to look upon what they do and say as a kind of expressive dance in itself.”
John says that one hard choice the company wrestled with was nudity. It’s at the center of the case, so should it be in the play? And if so, how? “I wanted to be faithful to the austerity of the court and its discourse,” he says. “On the other hand it was irresistible to test that idea of someone naked on stage in front of an audience. What does that mean, and what does that do? I had to go there.”
But John didn’t just want to make the actress playing the Kitty Kat dancer take off her clothes—“That felt predictable.” And so that’s not what happens. Instead, for the manic climax—well, I’m not going to give away the ending, except to tell you that it involves a gold thong and the shout (straight from the court transcript, of course), “THAT’S NOT SPEECH!”
Arguendo runs through Sunday in New York. Then it moves to Columbus, Ohio; Williamstown, Mass.; Chicago; Washington; and my very own New Haven. I’m obviously biased, and, in the court’s terms, should recuse myself. But go see it, and tell me: Hasn’t Elevator Repair Service given the Supreme Court a gift? Don’t you like the justices better for having spent the evening with this version of them? Here’s what I’d most like to see next: Arguendo staged at the court itself.