It was an evening of high farce before the high court at the Shakespeare Theatre Company's Sidney Harman Hall in Washington D.C. on Monday night. Three Supreme Court justices and five other federal judges, comprising the "Supreme Court of Illyria," wrestled with the hypothetical case of Malvolio's Revenge, stemming from Shakespeare's Twelfth Night.
In the end, the steward Malvolio lost his bid to preserve an imaginary $10 million punitive damage award he had won against his boss Lady Olivia for false imprisonment and emotional distress. If you remember the play, Olivia's staff had tricked Malvolio into doing insane things to win Olivia's favor, leading to a compelled visit to the dungeon for Malvolio.
"This is an intentional tort!" Justice Ruth Bader Ginsburg exclaimed to Olivia's lawyer Roy Englert Jr., referring to the false imprisonment. It was "very, very brief," Englert replied, which led to U.S. Court of Appeals for the D.C. Circuit judge Merrick Garland's retort: "It was very, very false." Englert, partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber, rose to the occasion, with a droll and winning delivery that belied his self-proclaimed lack of a sense of humor. Both Supreme Court precedent and the Oracle of Delphi, Englert insisted at one point, require that the ratio between punitive and compensatory damages should be no more than 1:1.
Olivia and her staff should not be held liable for what they did to Malvolio, Englert said, invoking both the "Illyrians With Disabilities Act" and a sense of "American justice." To which D.C. Circuit Judge Douglas Ginsburg replied cryptically, "We also have American cheese."
Not-so-veiled references to the imprisonment of Guantanamo detainees popped up often in discussion of Malvolio's detention. Noting that Malvolio had never seen counsel, been indicted, or given other due process before being deprived of his liberty, Garland paused and said, "Where have I heard this argument before?"
King & Spalding partner Paul Clement, who had to defend the Gitmo detentions as solicitor general, represented Malvolio in his challenge to his detention. Clement handled that irony well, joking that even though "somewhere, there's an OLC opinion saying all of this is perfectly lawful," Malvolio deserved justice in the form of punitive damages -- even 400 years after the imprisonment. "If there's anything about this suit, it's ripe," Clement said.
Justice Stephen Breyer also seemed to be having fun, breaking into a slightly goofy, squinty smile whenever he got a laugh with a bon mot. He asked Englert about the doctrine of "respondeat Malvolio" on the question of whether Olivia should be held liable for the mischief of her staff.
The often stern Justice Samuel Alito Jr. seemed to be in comedic mood for the argument too. He read this rambling remark from the clown in Act 4, Scene 2 of Twelfth Night: "As the old hermit of Prague, that never saw pen and ink, very wittily said to a niece of King Gorboduc, 'That that is, is;' so I, being master parson, am master parson; for, what is 'that' but 'that,' and 'is' but 'is'?" Alito said, "It sounds like a lawyer." Englert came back with the only answer possible: "This is not a case that turns on what the meaning if 'is' is." The audience roared.
After the argument, the "court" deliberated in private for a few minutes, and then returned to the stage. Presiding Justice Ginsburg offered her verdict that both Englert and Clement had done a "spectacular" job arguing for their respective clients. But she said Englert had won on behalf of Olivia. The judges agreed, Ginsburg said, that Olivia had "official immunity" from liability, even though that argument was not made below. D.C. Circuit judge Brett Kavanaugh sided with Malvolio.
When it was Breyer's turn to explain his vote for Olivia, he said flatly that he had voted that way because "I don't like Malvolio." Which gave Alito an opening for the last laugh. "I always wondered what 'Active Liberty' meant," Alito said wryly, a mild jab at Breyer's 2005 book by that name.
This morning, Englert was asked about his victory. "I am just glad to survive," he said. "And my client, of course, is gratified to be relieved of an unjust liability, though I expect she will contribute $10 million to a worthy charity, probably one to aid people suffering from mental illness."