Hello, Hello, and Welcome to new viewers of our site and to our loyal readers!! At the end of my Introductory Blog, I said my next installment would, among other things, discuss how I go about writing my Supreme Court plays. . .Sooooo, awayyyyy we go!
A few preliminary details, first. I have a working rule, before I choose a case to do. That is that all the Justices, who heard a particular case under consideration, have to have “gone off to their rewards,” or wherever they ended up after their last breaths. Thus, all members of a particular Court have to be DEAD. Right. Done this. Let’s move on. . .
Second, my plays are NOT your average Court-related plays. In Act II, Scene 2 of all of them, I put the audience, or reader(s), into the Conference Room where only the Justices ever go.
The audience/reader, then, gets to play “fly-on-the-wall” and listen to (usually) nine upper- or upper-middle class, Anglo-Euro males “have at it,” in ways they would not do in public. The “Hair’s Down,” the “Gloves are OFF,” and the animosities and/or friendships are on FULL display. I’ve tried to make these LONG on Drama, and lighter on “Law Stuff.” (Some might use a different “s” word, but I demure. . .), with the view to interesting a very broad audience.
Rest assured: these are not written solely for lawyers, judges, justices and/or law students, though I am confident these plays would appeal (NO pun intended) to those potential audience members, too. I am hopeful that they would learn a lot, as well. . .
Another word on the Case Conferences. We have NO records of anything said in that room, UNLESS a Justice has made diary entries and/or spilled the beans to his (or now, fortunately, her) law clerks, and later that law clerk has written a tell-all book (UNLIKELY), OR he’s been “gotten to” by Bob Woodward, as in his account of the Burger Court, The Brethren. Apparently, Woodward got more than a few law clerks to violate what I call “The Cardinal Rule of Clerkdom/Clerkhood”: Thou shalt not SNITCH on what happens in Thy Justice’s Chambers. .
Third, the dialogue I write for characters is what I believe to be plausible, based on their individual backgrounds, viewpoints, ideologies, etc. With Justices, themselves, the cases they wrote and their political views, before becoming Justices, are key things that I take into account. I avoid putting any words in their mouths that I don’t think they would have said. In general, I’m trying to “get into characters’ heads.”
Fourth, this brings me to the most important, pre-writing activity: research. I research the characters’ biographies, experiences, relationships, and other relevant details. I go into the background circumstances leading up to and during the case, itself. By the time I’m ready to write the play, I’m thoroughly knowledgeable about the case and its aftermath. Fortunately, after all these years of being a student, professor, and scholar, I often have working knowledge of the case, before the further research goes forward. AND, as important, I look for the “local colour” surrounding the case.
Here’s an example of “local colour”: from the time D.C. became the Nation’s Capital, at the end of John Adams’ Administration, until 1935, the Supreme Court heard arguments in the Old Senate Hearing Room at the Senate end of the Capitol. The Supreme Court Building, or “The Temple,” as I call it, did not open until 1935.
When I was working on Marbury v. Madison, the case that CREATED the Supreme Court as the institution it’s been from 1803 up to now, I discovered that, due to the illness of one of the six sitting Justices, the case was heard and later announced in the lobby of Stelle’s Hotel, near the Capitol! John Marshall wanted there to be a collegial, almost monastic, relationship among the Justices, when the Court was in session; so, the Justices lived at that Hotel, ate their meals there, drank Marshall’s wonderful wines there, and for several days in February 1803 heard and announced cases there, in the lobby. So, I set the discussion of the case in one of the Justices’ hotel rooms, where they talked about how to avoid being impeached and removed by President Thomas Jefferson’s Congressional allies/supporters, all the while enjoying a few bottles of fine wines from John Marshall’s own wine cellar! (On another occasion, I shall relate interesting stories about various Justices, including Marshall.) That’s the kind of “stuff” that makes Set Design more interesting, than just having “courtrooms.”
Fifth, I use Primary and Secondary sources, both in-print/hard copy and on-line. The Library of Congress’ Law Library has been very helpful in this regard, because it has a vast collection of bound volumes of the actual briefs filed in cases well back into the 19th Century! I also pore over the case reports, as what they are: Primary, Historical documents, with important details and names, not only of the Court members, but also the advocates, the dates, and I correlate those with other historical events of the time. In the situation of the next case we shall be adding to the play list, Santa Clara County v. Southern Pacific Railway Co., the Reporter of Decisions, who worked for the Chief Justice and the Court in the 1880s turned out to be a very important, though seemingly minor, character. Where I have had the time to, I have also sought out personal documents of the characters.
But we are also engaged in Literary AND Performance Arts. We want to educate and entertain. Therefore, this is where imagination is such a significant resource. Since we can’t possibly know the exact words said, more than one or two hundred years ago (Marbury v. Madison, for example), I try to make good, plausible guesses, to create and balance DRAMA, with Plausible Likelihood. And there are humour and zingers, between and among the Justices, because, if nothing else, we want the audience to appreciate that these were human beings with their prejudices, dislikes, likes, and other reactions to their colleagues. One well-known Justice is remembered for suggesting that being on the Supreme Court was like working with nine scorpions in a bottle!
Sixth, in each case, I identify and use one, or several “bad boys.” By all accounts, these were Justices, who could be counted on to say the nastiest or most inappropriate things to their fellows, or to treat said colleagues with more than a lack of respect. In one set of circumstances, there was even anti-Semitic hatred held by one Justice for a fellow Justice! The culprit was Justice James McReynolds, who caused there to be NO official photograph o f the Court in 1924, because he refused to sit next to Justice Louis Brandeis, one of the greats in Court History; Justice Brandeis was Jewish.
Conflict is the soul of Drama. From a dramatic viewpoint (only), I was fortunate to have Justice McReynolds (Schenck v. U.S. and Buck v. Bell) as a very reliable bad boy; after researching his life, as well as what others said about him, I came to conclude there wasn’t a nice person he couldn’t insult! But this makes the drama even more human and compelling, as verbal jousting ensues. Other notable “bad boys” include Justice Stephen Field (Bradwell and Santa Clara County) , Justice Joseph Bradley (Bradwell), Justice Oliver Wendell Holmes, Jr. (Buck v. Bell), and Justice Samuel Chase (Marbury v. Madison), among others. There were heroes, as well, such as Chief Justices John Marshall (Marbury), Salmon P. Chase (Bradwell), and Morrison R. Waite (Santa Clara County v. SP) and Justice Samuel Miller, M.D. (Santa Clara County). . . Even Holmes had good moments in Schenck, thus illustrating how one day’s villain could be another day’s semi-hero.
But, as noted, we must recall the Supreme Court’s membership, prior to 1967 was hardly a poster for “diversity.” The members of the Supreme Court I have depicted have been upper and upper-middle class Anglo-Euro males, who were, for all purposes, products of their times. They had their not-pretty prejudices, etc. Sexism, racism, LGBT-phobia, and probably many more “isms” and “phobias” I don’t know about, existed in these men. My purpose is not to glorify them, but to present a more realistic, human picture of what might have happened and been said in that room, “behind closed (and safe, until a certain, former Post reporter) doors.”
In an ironic twist, as I write this, I’m also working on the Pentagon Papers Case, New York Times v. United States. Its companion, United States v. The Washington Post, for which Mr. Woodward worked and made his journalistic name, during his collaboration with Carl Bernstein, was decided on the same, extraordinary day!
Here are other cases on my list, for future treatment: Miranda v. Arizona (YES, Virginia, THAT Miranda!), Mapp v. Ohio (YES, the police and the Feds shouldn’t be ALLOWED to use that evidence “stuff” they got by violating the Fourth Amendment!), United States v. Nixon
(YES, Mr. Nixon only the Supreme Court gets to interpret the Constitution!, a/k/a the Nixon Tapes Case), Griswold v. Connecticut (The First Birth Control Case), Korematsu v. U.S. (The Japanese Exclusion Case), and Schechter Poultry v. U.S.(The Sick Chicken Case), among others. Another case on the list, Katz v. U.S. gives us a possible answer to the question: where have all the REAL phone booths gone?! [Fortunately, Clark Kent did not live in our time period!]
Soooo, that’s how I write the plays. Please stay tuned, as we add to the list, as I complete and copyright each new one. Coming soon: short synopses of the first four, completed plays! I’ve gathered them into an Anthology, entitled, Supreme Court Drama, Volume I. . Also, in the not-too-distant future, we are hopeful you will have the chance to see AND participate in productions of them! Until next time. . . This has been a slice!