Supreme Court's Shakespearian trial

by Mark Silva

So there was Samuel Alito, an appointee of George W. Bush on the U.S. Supreme Court, challenging the legality of a leader who invaded a sovereign nation killing his prisoners.

Except, if it was Iraq and "the war on terrorism'' which really was under debate, this was not explicit. The veils of theatre are sometimes thin.

What was literally under debate were the acts of Henry V, in a mock trial of the actions of a monarch immortalized by William Shakespeare testing the legality of Henry's treatment of prisoners captured in France -- in this case, not simply torturing them, but killing them.

And Alito was making the case against the king.

(It was Alito, you'll recall, who in real-life political theater, could be seen mouthing his objection when President Barack Obama voiced his objections during his State of the Union address to the contrroverisal 5-4 Supreme Court ruling that eliminated a long-held ban against corporate spending in election camapigns).

Both Alito and fellow justice Ruth Bader Ginsburg starred on a multi-judge panel in last night's sold-out presentation of Judgment at Agincourt at the Shakespeare Theatre in Washington. Scene-setter: "Following the District Court of Agincourt's ruling that Henry V was justified in his slaughter of the French POWs, the Supreme Court of the Amalgamated Kingdom of England and France has granted certiorari to the POW estates.''

As the theatre explained the history: "During the Hundred Years war, despite being outmatched five to one, the underdog English army decisively prevailed over the French forces at the battle of Agincourt, securing by force Henry V's challenged claim to the French crown. Although the victory caused much rejoicing in England, misery unfolded across France, as the Duke of Burgundy eloquently expresses in the final scene of Shakespeare's Henry V. Ill will towards Henry welled up among the French, particularly in response to Henry's order to execute all of the French prisoners of war. The order - which was given in an act of rage - was reiterated and carried out after Henry learned that the French had slaughtered a group of unarmed English baggage boys during the battle.''

Justice Ginsburg was presiding, along with Alito and a cast of federal appellate judges: Paul Michel, Janice Rogers Brown, Merrick Garland, Brett Kavanaugh and David Tatel.

Some heavyweight Washington lawyers were arguing before them: Viet Dinh of Bancrof & Associates and Gregory Garre of Latham & Watkins for the petitioners, and Miguel Estrada -- a name which congressional and court-watchers will recognize -- of Gibson Dunn and Kannon Shanmugam of Williams & Connolly for the respondents.

Alito, in his role on the bench, was arguing that the war was illegal, because the line of succession to the French crown did not justify usurpation by the English line of kings. In addition, the killing of noncombatants was illegal for a variety of reasons.

The lower court was reversed, a jolly good time was had by all and the audience spilled out onto the streets of Washington on a splendid early-Spring evening.

Alito, one of Bush's conservative appointees, and Ginsburg, a Clinton appointee on the high court, are back at work today. The Obama administration has banned torture of detainees. Though the former Bush administration, as it has asserted so often, did not condone torture -- that's their story, and they're sticking to it.

(Photo of Supreme Court Justice Samuel Alito and President Barack Obama, above, by Alex Wong / Getty Images. Portrait of Henry V courtesy of Cornell University.)