Ginsburg Presides Over Mock Trial Of 1984

Congress members performed in the Shakespeare Theatre's Harman Hall last week. This week, it was Supreme Court justices.

Justices Ruth Bader Ginsburg and Stephen Breyer, along with DC Circuit Judges Patricia Millett, David Tatel and Cornelia Pillard, sat on the bench for the Shakespeare Theatre Company's sold-out Mock Trial.

The appellate argument was based on George Orwell's 1984, which STC presented as a play a few months ago. The central question: Given the context of war or national security, should Oceania officials be held liable for 1984 protagonist Winston Smith's mistreatment (including wrongful surveillance, wrongful arrest and detention, and torture)?

A trial around national security and surveillance issues, though premised here on a dystopian novel, isn't too far-fetched; in fact, during a '11 Supreme Court argument over warrantless GPS tracking by law enforcement, Justice Breyer referenced 1984. "If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. So if you win, you suddenly produce what sounds like 1984... "

Lawyers, judges and justices in the Mock Trial come prepared with legal citations, but also plenty of quips about current events and pop culture.

Arnold & Porter partner Amy Jeffress (at the podium), a former Justice Department Attaché to the US Embassy in London and Counselor to the Attorney General, was the counsel to the petitioner, Winston Smith.

Amy said that "alleged national security reasoning is vastly overblown" in mass surveillance of citizens' mobile devices in Oceania. "So far, surveillance has only proven that Oceania citizens are using the right bathrooms" according to the "Birth Sex Bathroom Statute—known as “B.S.B.S."

She added, surveillance "will not make Oceania great again."

Perkins Coie partner Bob Bauer (seated next to associate Hayley Berlin), former White House Counsel to President Obama and DNC GC argued the case for the respondent, the State of Oceania.

Judge Tatel asked Bob how anyone could trust the nation, given its decades of rewriting history. Bob gave an answer that sounds at home in DC: "You should not confuse lies and deception with public relations and spin. It's spin!"

Justice Ginsburg asked him whether he's "going by the 'deck chair' theory of constitutional rights." With that theory, rights, like deck chairs, are for sunshine; in stormy weather, you pack them away.

Bob answered that it's more like a domed baseball stadium: the dome is usually open, but when it closes in bad weather the baseball continues inside. "I think that's an appropriately misleading analogy," he concluded, to loud laughter from the audience.

Another pressing question came from Judge Millett: Is he also responsible for the Metro SafeTrack program that's designed to keep everybody locked in their homes?

Justice Breyer referenced Hamilton with multiple comments in rhyming verse, and Judge Tatel even asked a question entirely in 1984's "Newspeak." (Multiple cracks were also made at the expense of Breyer's new book about foreign courts.)

Judge Millett said she's getting tired of references to Big Brother, and asked whether it's time to break the glass ceiling and instate a "Big Sister." Amy replied, "Many of us would like to think that Big Sister would not be so abusive."

After the counsel made their arguments, the audience voted with chips and the justices of Oceania headed off to deliberate.

STC, the 2012 winner of the Regional Theatre Tony Award, has hosted a Mock Trial based on a play from its main stage season since '94. They always sell out the nearly 800-person Harman Hall, no surprise given the many lawyers and theater buffs in the District.

Past trials have explored whether Iago was guilty of murdering Desdemona and Othello, whether Hamlet was insane when he killed Polonius, and, last year, whether the "Family Court" in Man of La Mancha was correct to declare Don Quixote mentally incompetent and put him under the guardianship of his niece.

While the justices deliberated, STC Bard Association chair and STC Board of Trustees member Abbe Lowell discussed real-life privacy and surveillance issues with Gibson Dunn litigation group co-chair Ted Boutrous.

Ted was one of the lawyers who represented Apple in its encryption dispute with the FBI. The law hasn't kept up with technology, Ted pointed out: the government tried to use the All Writs Act (the foundation of which was created in 1789) and an opinion from 1807 to compel Apple to cooperate.

He supports end-to-end encryption, saying that a backdoor available to the government could become a "grand prize" for hackers who got ahold of it.

Ted's argued more than 80 appeals, including successfully repping plaintiffs in invalidating California same-sex marriage ban Prop 8, and getting unanimous wins in Supreme Court cases Wal-Mart Stores Inc. v. Dukes and Standard Fire Insurance Co. v. Knowles.

Abbe, who chairs Chadbourne's litigation department and white collar defense group, has argued cases before the actual Supreme Court, and repped high-profile clients such as John Edwards, Gary Condit, Jack Abramoff and Sean Combs.

Justice Ginsburg, who was presiding for her 14th year, presented the decision. "On the merits, this is a very easy case, because if 'War is Peace,' then we are all in peacetime, and there is no need for these extraordinary measures."  ("War is Peace" is one of the totalitarian government's slogans in 1984. Another is "Ignorance is Strength," which rings true in the climate of today's political campaigns.)

Breyer concurred (again, in rhyme), as did Pillard and Millett. The audience's votes also fell in line.

Tatel dissented, saying, "Of course, this won't be the first time the Supreme Court has not agreed with me." As both clients have been rewriting history, he said he had no confidence in the record "or anything else these otherwise fine lawyers have told us today."

After giving the opinion, Ginsburg asked on a serious note whether measures like torture could be acceptable, such as in a "ticking bomb" scenario. "Torture, never," she said. "Because we could hand our enemies no greater victory than in our concern for security, to lose all the basic values that make us a human society."