Sunday, March 13, 2011

Supreme Night Court: Judges Relax By Trying the Fictitious and the Dead

It's harder than ever to get a case before the U.S. Supreme Court. But while the court turns away 99% of 10,000-odd petitions filed each year, there are cases many justices find irresistible: fictitious ones.

Justice Anthony Kennedy came here Jan. 31 to conduct a mental-competency hearing for Hamlet, accused of killing Polonius. Billed as "Justice Anthony M. Kennedy's the Trial of Hamlet," the production featured real-life celebrity lawyers including the deputy district attorney who's prosecuting Lindsay Lohan for shoplifting and, as a bleeding-heart juror, Oscar-winning actress Helen Hunt.

Shakespeare's tragic hero is just one of many literary and historical figures to make the mock docket. Justice Ruth Bader Ginsburg once donned a 19th-century major general's uniform to preside over Col. George Custer's mock court-martial. Justice Samuel Alito has tried Socrates for corrupting the youth of Athens, while Justice Antonin Scalia put Thomas Jefferson and Napoleon in the dock for conspiring to destroy francophone culture in the New World. The trial was conducted mostly in French.

Justice Sonia Sotomayor is the latest to get in on the act. Next month, she'll join Justices Ginsburg and Alito to hear an appeal on a blackmail conviction from Mrs. Cheveley, from Oscar Wilde's "An Ideal Husband."

Unlike many people, some of America's top jurists enjoy spending their off-hours pretending to do their day jobs.

Several justices say the faux trials, which often raise money for causes like the Supreme Court Historical Society and Washington's Shakespeare Theatre Company, provide a convenient excuse for pleasure reading.

"When you're reading all these briefs," says Justice Ginsburg, pointing at a stack of legal filings in her chambers, "it's nice to take time off and read something great or delightful."

The mock cases often are argued by experienced advocates, such as former Whitewater prosecutor Kenneth Starr, and some panels include lower court judges, too.

Participants usually have dinner together before the evening sessions. "I have one, or maybe two, glasses of wine. That would be unthinkable at the real court," says Justice Ginsburg. "It's fun," adds Justice Stephen Breyer. "The arguments are usually presented quite spectacularly."

Last year, conservative Justice Alito joined liberal Justice Ginsburg in affirming Henry V's war-crimes conviction for executing French prisoners of war. While Shakespeare considered Henry a hero, "we applied the 'evolving standards of decency that mark the progress of a maturing society,"' says Justice Alito, referring to a 1958 precedent on cruel and unusual punishments that many conservatives still dispute.

In 2007, former Solicitor General Theodore Olson was defending the title character from Marlowe's "Edward II" when Justice Ginsburg surprised him with a citation rebutting his argument: It was an opinion that Mr. Olson himself had written while working in the Reagan administration.

"There was a gleam in her eye," Mr. Olson says. "She knew that the audience would get it."

For Washington litigator Eugene Scalia, a mock trial was probably as close as he'll ever get to a real Supreme Court case. Until Justice Scalia decided to retry Aaron Burr for treason, "my only chance to argue a case in front of him was at the dinner table," says the 47-year-old Mr. Scalia.

Did the justice pull punches for his son? "Point No. 1: I lost," says Mr. Scalia.

The Supreme Court forbids cameras at real arguments, but mock trials have been videotaped since 1987.

"I think it would be a lot more important to let the public see the court in Bush v. Gore," grumbles former Sen. Arlen Specter, the ex-chairman of the Judiciary Committee who spent years hectoring the justices to televise arguments. "They should leave Hamlet to the high schools."

While most justices are satisfied to be performers, Justice Kennedy is the impresario behind "The Trial of Hamlet." He says he got the idea in the early 1990s, when psychiatrists were revising the definitions of mental disorders. A forensic examination of Hamlet, he figured, could be a teaching device.

"I had the idea that I could write a play, but there are so many different ways to go," Justice Kennedy says. Instead, he devised an improvisational structure where prosecution and defense attorneys would call psychiatric experts to the stand.

Justice Kennedy workshopped the concept 17 years ago in a Supreme Court conference room, and later staged it in Boston and Chicago. After selling out a 2007 performance at Washington's Kennedy Center, the justice pitched it to Ben Donenberg, founder of the Shakespeare Center of Los Angeles.

January's production proved the biggest yet, filling the 1,200-seat Bovard Auditorium at the University of Southern California with tickets selling for $30 to $100.

Hamlet was represented by celebrity lawyer Blair Berk. In preparation, she consulted one of her clients, Mel Gibson, who played the Danish prince in Franco Zeffirelli's 1990 screen adaptation.

"He knows it on a level you couldn't imagine," says Ms. Berk, who negotiated the "Lethal Weapon" star's no-contest plea to misdemeanor battery for striking ex-girlfriend Oksana Grigorieva. Mr. Gibson, who attended the USC performance, sent Ms. Berk A.C. Bradley's 1904 commentary on Hamlet's erratic behavior.

Alas, the jury voted 10-2 against the prince, played by Graham Hamilton, seen on HBO's "Big Love."

Chatting before the show, the costumed Mr. Hamilton told Justice Kennedy that Hamlet's "antic disposition" is a ruse rather than a symptom of diminished capacity, Justice Kennedy—often a swing vote on the Supreme Court—wasn't so sure. "I've gone back and forth," he said.



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