Order in the living room! There is no bottom to Washington’s taste for litigation, but Shakespeare Theatre’s Mock Trial went beyond itself last night, charging Nick Bottom and the rest of the Rude Mechanicals with a contractual violation which they, ah, didn’t actually commit.
The Supreme Court of Athens met via Zoom last night – this is not just a pandemic, covering the earth, but an omnidemic, reaching back thirty-two hundred years in time – to adjudicate a lawsuit brought by Duke Theseus against the Rude Mechs for their failure to show up at his wedding to Hippolyta. If you are now diving into your copy of Midsummer Night’s Dream because you remember that they did show up and performed Pyramus and Thisbe, badly – stop. We are playing with alternative facts.
In fact, Presiding Justice Merrick B. Garland of DC’s Circuit Court of Appeals brought the inconvenient fact of the record to the attention of the Duke’s attorney, the distinguished former White House Counsel (2011-2014) Kathryn Ruemmler, about thirty seconds into her argument. After a few awkward moments, Ruemmler managed to explain that the idea that the Rude Mechs didn’t show up was part of the premise – was, in short, a legal (factual) fiction. Things proceeded smoothly, more or less, after that.
Ruemmler was matched up against Abbe Lowell, the Winston and Strawn LLP superstar who once got John Edwards out of a pickle; defending Nick Bottom must have looked like child’s play to him. Lowell usually moderates these things (Tracie Thoms substituted, and did a good job), but last night got a star turn and used it to lard his arguments with Shakespeare quotes.
At the bottom of Bottom’s defense was the concept of Force Majeure – the doctrine (and, in this case, the contractual provision) that if a thing becomes impossible because of an act of the gods, the party otherwise obliged is relieved of all obligation. Force Majeure is all the rage these days; because of the coronavirus folks are looking to get out of all sorts of obligations and besides, of course, it’s French. The Mechanicals argue that because of an act of the gods – specifically, Puck’s decision to replace Bottom’s head with the head of an ass – it became impossible to produce the play. As Lowell pointed out, the text requires Pyramus to stick his face through a tiny hole in the wall and give Thisbe a smooch. In his altered state, Lowell argued, Bottom would drool all over the audience.
The panel – Garland and his DC Circuit Court of Appeals colleagues Patricia A. Millett, Neomi Rao and DC District Judge Amy Berman Jackson – grappled with the question of whether the warring parties could have made it easier for themselves by, for example, substituting another play, such as Schreck the Musical, or finding an understudy to go on for Bottom (Brad Parscale may soon be available). But the advocates were having none of it. Lowell averred that Duke T insisted that only Pyramus and Thisbe would do, and in addition argued that only Bottom could play the lead. As for Ruemmler, she was of the opinion that Bottom’s transformation actually enhanced his suitability for the role – at least in the comic version of the tragedy Theseus wanted to see.
The panel also struggled with the question of whether Puck, the agent of Bottom’s transformation, qualified as a “god” within the meaning of the Force Majeure clause. They wondered whether Theseus and Hippolyta, demigods (i.e., with one celestial and one earthbound parent) themselves could not undo Puck’s spell with one of their own. To illustrate, Garland, who does not claim to be a demigod, changed his background from that of a comfortable office to the steps of the U.S. Supreme Court to a startlingly crimson enchanted forest, all without seeming to move a muscle. He did not, however, change the head of one of the learned counsels (nor, as far as I could tell, an audience member) into that of an ass.
As is the usual with these sorts of things, the panel interpreted its temporal mandate broadly, wandering into issues both contemporary and timeless. Judge Millett wanted to know whether the real reason Duke Theseus wanted a production of Pyramus and Thisbe was to show that the wall, which separates the two lovers for the duration of the play, would be paid for by Sparta. And Judge Jackson, noting that Hippolyta actually thought that inviting the Rude Mechs to the wedding was a bad idea, wondered whether Theseus had learned the first rule of being a married man, which is that his wife is always right.
They say that hard cases make good law, but Theseus v. Peter Quince et al made no law at all. The court split evenly, with Berman and Millett in the corner of the Duke, and Garland and Rao for the Mechanicals. Thus the decision of the lower court (which had held that Force Majeure did not apply, but the Mechs were entitled to the defense of impossibility, which gave them some relief) stood. Judge Garland used this opportunity to urge the use of an uneven number of judges – an ironic reminder of the 293 days in which Garland’s nomination to the (U.S.) Supreme Court languished in the Senate while the Supremes experienced 4-4 splits in important cases.
The audience, composed of about 500 lawyers, Shakespeare enthusiasts and hangers-on, was a little less nuanced. It rejected the Rude Mechs’ arguments, sided with the Duke, and clearly endorsed the concept that the show must go on. If this has a wider implication, it is not clear from the record.
The Mock Trial program book contains a legal summary of the case.
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