About a year and a half ago, John Collins asked me to help him make a piece of art. John directs a theater company called the Elevator Repair Service, and his invitation was at once implausible and irresistible: He wanted help creating a play—real live entertainment—from a Supreme Court oral argument. Performed verbatim.
I’d heard of Elevator Repair Service because its production of Gatz, a seven-hour, unabridged dramatic reading of The Great Gatsby, got rave reviews. I’d never met John, though, so his first email was a surprise, especially given the subject. He wanted to talk Supreme Court.
John is actually a court junkie—one of those people who follow the court purely because he’s interested in its work. He’d figured out a few years earlier that it’s possible to download audio files of the court’s oral arguments. He’d started with Eldred v. Ashcroft, a major 2002 copyright ruling, because he was wondering if he had any hope of making a fair-use claim for Gatz’s appropriation of The Great Gatsby. (No, he didn’t.) From there, he’d branched out to all kinds of cases and then come back to the First Amendment and other rulings related to it. Mining that vein, he found the argument in Barnes v. Glen Theater, the Supreme Court’s 1991 decision about whether South Bend, Ind., had the right to ban nude dancing. (The ordinance in question required dancers at the Kitty Kat Lounge to wear pasties and a G-string.) The case turned on whether this kind of performance counts as art and is thus a protected form of free expression.
John noticed that there was a lot more audience participation during the Barnes arguments than he was used to hearing from the staid court recordings: People in the Supreme Court gallery were actually laughing out loud. There’s certainly a good bit of farce to be found in nine august justices and two lawyers wrestling with lofty First Amendment questions prompted by the gyrations of go-go dancers. At one particularly ridiculous point, Justice Anthony Kennedy conjures a hypothetical in which a nude dancer is hired to bring in customers at an “adults-only car wash.”
John decided he wanted to stage the argument in Barnes. He had a civic-minded purpose: to get “more people excited about how you can actually understand these cases, you can follow them.” He wanted to be a new kind of Supreme Court translator. “There were precedents cited I didn’t know or understand and legal ideas that were not immediately accessible, but so much of this case was accessible, I think, because it was about performance,” he says.
When John’s email first appeared in my inbox, I thought he was sweet but about to discover a basic truth he’d somehow missed: The justices of the Supreme Court are not F. Scott Fitzgerald. Oral argument does not sound like literature. It is full of lawyer-speak and technicalities and obscure references to previous cases and precedents. John didn’t seem to understand just how plain boring oral argument can be.
When I saw a first run-through of the show, months ago, I wasn’t all that reassured, I confess. The actors were talented, but the production was spare, and there were long passages I couldn’t really follow. What about all the poor people in the audience who hadn’t gone to law school—would they feel boxed out by the court’s self-constructed barriers of language, rather than, as John hoped, invited in?