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End of an Oxfordian Era on the Supreme Court?

Remembering Justice Antonin Scalia (1936-2016)

by Bryan H. Wildenthal[1]

Justice Antonin Scalia and Prof. Bryan Wildenthal

Justice Antonin Scalia and Prof. Bryan Wildenthal

With the death of Justice Antonin Scalia, 79, on February 13 of this year, the United States Supreme Court lost one of its most brilliant and influential members—and Oxfordians lost one of the most distinguished figures ever to support the theory that Edward de Vere, 17th Earl of Oxford, was the true author of the works of “William Shakespeare.”

Justice Scalia, the first Italian American to serve on the nation’s highest tribunal, was appointed by President Reagan to the U.S. Court of Appeals in 1982 and then to the Supreme Court in 1986. He is best known as the intellectual leader of the Court’s conservative wing, an articulate exponent, sometimes caustic and controversial, of the closely allied legal philosophies of “textualism” and “originalism.” His firm belief was that laws—most importantly, the U.S. Constitution—should be read faithfully according to their text, informed by evidence of how they were publicly understood when enacted but without what he viewed as subjective and manipulable inquiries into the “intent” of the framers or “legislative history.” He flatly declared: “It is the law that governs, not the intent of the lawgiver.”[2] As a legal scholar and an Oxfordian, who has taught and written on Justice Scalia’s judicial philosophy,[3] I have a deep interest in his combined legacy for the law and the Shakespeare authorship question (SAQ).

We know few details of Justice Scalia’s Oxfordian views. Alas, I did not broach the subject on the four occasions between 2001 and 2007 when he spoke at Thomas Jefferson School of Law in San Diego and I had the honor of meeting him.[4] Scalia’s views were not widely known before publication of a 2009 Wall Street Journal article, which quoted him recalling that as a child he’d received from a family friend “a monograph propounding de Vere’s cause.”[5]

Edward de Vere, 17th Earl of Oxford -- the real "Shakespeare"?

Edward de Vere, 17th Earl of Oxford — the real “Shakespeare”?

The “monograph” may have been John Thomas Looney’s 1920 book launching the Oxfordian theory, or possibly This Star of England published in 1952,[6] when Scalia was a sixteen-year-old student at Xavier High School, a Jesuit academy in Manhattan. The leading biography of Scalia notes that while at Xavier he “discovered his ability as an orator and a thespian and, as a senior, won the lead in Macbeth.”[7] As a Georgetown University history major, Scalia maintained his interest in drama as president of the Mask and Bauble Theatre Club.[8]

All this suggests that Scalia was a Shakespeare lover and Oxfordian from a young age. There is something almost Falstaffian in his biographer’s description of him as “a connoisseur of food and drink, an opera lover, an enthusiast of many intellectual pursuits.”[9] The apple did not fall far from the tree. His father, Salvatore Eugene Scalia, immigrated from Sicily in 1920 at age seventeen and became a professor at Brooklyn College, a scholar of Romance languages, translator, and expert on Dante. His mother, Catherine Panaro Scalia, daughter of Italian immigrants herself, was a schoolteacher.[10] While Ben Jonson teasingly questioned whether Shakespeare knew “small Latin and less Greek,”[11] Scalia studied both for years.[12]

There appear to be some fascinating linkages between Scalia’s careful attention to the literal text of the law and his father’s belief in a literalist approach to translation. Anticipating his son’s constitutional originalism, Professor Scalia père believed that works of literature can truly be appreciated “only by direct ‘communion’ with the original ‘page’ itself … only by being able to interact directly with the text’s original, and not translated, words.”[13] One can imagine Scalia fils developing a fascination with the text of Shakespeare’s works that may in turn have led him to an abiding curiosity about who wrote that text—even if the identity and intent of the original author were mysteries whose importance he discounted in the field of law. But perhaps this biographical approach is too speculative—too much in the Stratfordian mode?

Fittingly, a recent study found both that Shakespeare tied Lewis Carroll (another pseudonym) among literary authors of fiction and drama, for most citations in Supreme Court opinions by justices then on the Court, and that Justice Scalia led by far in the total number of such citations.[14] For example, upholding a criminal defendant’s Sixth Amendment right to confront his accuser at trial, Scalia offered one of the most vividly compelling uses of the Bard in the Court’s history: “Shakespeare was … describing the root meaning of confrontation when he had Richard the Second say: ‘Then call them to our presence—face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak ….’”[15] He seemed to delight in working in a bit of Shakespeare even when it didn’t really fit. Drawing a strained analogy in an employment discrimination case, he could not resist quoting the memorable exchange between Glendower and Hotspur, the former darkly boasting, “I can call Spirits from the vasty Deep,” Hotspur retorting, “Why, so can I, or so can any man. But will they come … ?”[16]

It would be fascinating to know if Scalia’s parents or children shared (or share) his love of Shakespeare—and possibly his dissent from Stratfordian orthodoxy? We Oxfordians know that such views often tend to “run in the family.” Scalia’s widow Maureen, a Radcliffe English major and his beloved wife for more than fifty-five years, apparently shared his love for Shakespeare and literature generally. By his own account, she registered a sharp spousal dissent on the authorship question. Acknowledging that she “is a much better expert in literature than I am,” he goodhumoredly confessed that she had “berated” him with the suggestion that “we Oxfordians … can’t believe that a commoner” wrote the works. Ever the zesty debater, however, Justice Scalia offered the insightful rejoinder that it may be “more likely” that Stratfordians “are affected by a democratic bias than the Oxfordians are … by an aristocratic bias.”[17]

Powell

Justice Lewis Powell

It is poignant to realize that Justice Scalia’s appointment to the Supreme Court marked, in retrospect, the beginning of an Oxfordian Golden Age on the Court, and that his passing now signals that era may be drawing to a close, even as the Oxfordian cause advances overall. Unbeknownst to the public and probably to him, in 1986 the newly seated Scalia joined no fewer than four justices already sitting on the Court who either then, or some years later, rejected the prevailing orthodox view that the Stratfordian theory of authorship has been established beyond any reasonable doubt. Of those four—Justices Harry A. Blackmun, Lewis F. Powell, Jr., John Paul Stevens, and Sandra Day O’Connor—two (Blackmun and Stevens, plus possibly O’Connor) were or became Oxfordians like Scalia. This tantalizing 5-4 majority on the nation’s highest tribunal lasted only for the 1986-87 term, until Justice Powell’s retirement, and not all had yet developed their authorship views. But for one term, at least 33%, possibly 44%, of the nine sitting justices were then or future Oxfordians—and fully 56% were then or future anti-Stratfordians!

Justice John Paul Stevens

Justice John Paul Stevens

Things started to get even more interesting on September 25, 1987, just a few months after Powell’s retirement, when Justices Blackmun and Stevens and their senior colleague Justice William J. Brennan, Jr., presided over the famous American University authorship debate between law professors posing as counsel for William Shakspere of Stratford and Edward de Vere, Earl of Oxford. The panel unanimously found that the Oxfordians failed to satisfy the high burden of proof —“clear and convincing evidence,” both that the Stratford man did not write the works and that Oxford did—rather arbitrarily imposed on them by Brennan at the outset, as presiding judge. Brennan announced the “clear and convincing” benchmark without consulting his colleagues, instead of the lower “preponderance of the evidence” standard far more common in civil lawsuits, a standard often equated with “more likely than not” or above a 50% probability.[18] Two decades later, the Shakespeare Authorship Coalition (SAC) under John Shahan’s leadership better articulated what should be the standard: whether “reasonable doubt” exists about the traditional Stratfordian attribution, doubt sufficient to stop the unjust ridicule and marginalization of authorship doubters and to justify serious and respectful public and academic study and debate.[19]

Justice Harry Blackmun

Justice Harry Blackmun

The 1987 panel comments contained hints of what was to come. Justice Brennan seemed a staunchly convinced Stratfordian, and as far as is known remained so to his retirement in 1990 and death in 1997. But Justice Blackmun, speaking next, began his remarks with: “Well … I suppose that’s the legal answer. Whether it is the correct one causes me greater doubt ….” Rather intriguingly, he continued:

[T]he secondary question which has been emphasized today is whether the Oxfordians have proved their case. My own feeling is that they come closer to proving it than anyone else has, and whether that is enough is something that we’re supposed to say, I suppose; and yet, I am reluctant to say it.[20]

Hardly a ringing endorsement of the Stratford theory!

Justice Stevens also concurred that “the burden of proof was not met,”[21] but the remainder of his comments were open, and even sympathetic to, the unorthodox position. He confessed to “gnawing doubts that this great author may perhaps have been someone else,”[22] thus already adopting the minimalist position of the SAC’s 2007 Declaration of Reasonable Doubt, which he signed in 2009 along with Justice O’Connor.[23]

Even more telling, Stevens made clear he had actually read Charlton Ogburn, Jr.,’s landmark 1984 book[24] and said flatly that he was “persuaded that, if the author was not the man from Stratford, then there is a high probability that it was Edward de Vere,” and that Oxford’s “claim is by far the strongest of those [alternative authors] that have been put forward.” He correctly dismissed the anti-Oxfordian argument that some plays were supposedly written after Oxford’s death in 1604, noting that the “dating of the plays … is sort of a self-generating thing, where some of the dates were established on the assumption that Shakespeare [of Stratford] was in fact the author.” Best of all, Stevens emphasized the importance of carrying on a respectful debate recognizing “the good faith and the honorable motives” of all participants,[25] and he expressly validated both the Oxfordian cause and the importance of the authorship inquiry itself—an implicit and powerful rebuke to all those who impatiently dismiss the issue. He specifically thanked Oxfordians for “putting forth honest views that are based on careful and deliberate study and interest in a very, very difficult problem,” and declared that “this really incomparable author who has given so much to our civilization … does continue to merit the study that we have seen today and that led up to this controversy.” Finally, he concluded, “the doctrine of res judicata”—the rule that a lawsuit, once finally resolved, may not generally be relitigated—“does not apply to this.”[26]

Justice Stevens firmly identified himself as an Oxfordian when interviewed by the Wall Street Journal in 2009, recalling that he and Justice Blackmun started developing more authorship doubts right after the 1987 debate.[27] Stevens accepted the “Oxfordian of the Year” Award later in 2009, jointly bestowed by the Shakespeare Oxford Society and Shakespeare Fellowship.[28] Less than four years after the 1987 debate, Stevens delivered a speech (published in 1992) strongly hinting at his support for the Oxfordian theory.[29] Blackmun went even further by 1992; the second edition of Ogburn’s book quoted him stating that “Oxfordians have presented a very strong—almost fully convincing—case,” and that if he again “had to rule on the evidence presented, it would be in favor of the Oxfordians.”[30]

Thus, within just a few years, fulfilling Stevens’s prediction that the matter would not stay settled, Oxfordians achieved an effective reversal of the initial apparent verdict of 1987. We ultimately won what amounts to a 2-to-1 judgment against the Stratford theory and in favor of de Vere—from the only neutral panel of professional judges ever to read and hear such a thorough presentation of the evidence and arguments. It should be kept in mind that the evidence in favor of the Oxfordian theory has been substantially augmented since 1987—perhaps most notably by Professor Roger Stritmatter’s breakthrough study of de Vere’s Geneva Bible annotations, Mark Anderson’s compelling biography of de Vere, and Richard Paul Roe’s study of Shakespeare’s Italian references—while still more holes have been blown in the capsizing Stratfordian theory, again by Roe and, for example, Diana Price’s study of Shakespeare’s missing literary paper trail.[31]

Justice Powell also came out as (at least) an authorship doubter in Ogburn’s 1992 book, and his doubts apparently long preceded the 1987 debate. He stated that he had “never thought that the man of Stratford-on-Avon wrote the plays of Shakespeare.”[32]

Justice Sandra Day O'Connor

Justice Sandra Day O’Connor

This anti-Stratfordian “era” on the U.S. Supreme Court, however, now seems mostly over. Powell retired in 1987 and died in 1998. Blackmun retired in 1994 and died in 1999. Scalia’s views, as noted earlier, were not (to my knowledge) publicly revealed until 2009. Nor were Justice O’Connor’s, and she had already retired in 2006 (she is now 86). The 2009 Wall Street Journal article made clear that O’Connor is a non-Stratfordian, but was less clear about whether she is an Oxfordian and revealed nothing about the origins of her views. Stevens eagerly testified that she leaned toward Oxford: “Sandra is persuaded that it definitely was not Shakespeare” and that “it’s more likely de Vere than any other candidate.” But O’Connor herself, in line with her 2009 signing of the SAC’s Declaration of Reasonable Doubt, stated for the record only that “it might well have been someone other than our Stratford man.”[33] SAC chair John Shahan reports that Scalia declined an invitation to sign the Declaration, citing a general policy against signing petitions and expressing surprise that anyone would care about his views on the issue. Powell and Blackmun died before the Declaration was issued, but are listed as prominent past authorship doubters.[34] Justice Stevens retired in 2010. Scalia was the last known Oxfordian among actively serving justices, and Stevens (absent further clarification from O’Connor) is now, at age 96, the last known Oxfordian justice still living.

There are signs of possible reinforcements. Authorship doubters continue to reach out to the current justices. The same 2009 article, published just months before Justice David H. Souter retired (he is now 76), quoted him as having “no idea” who the true author of the works of Shakespeare was. Justice Ruth Bader Ginsburg, a Shakespeare aficionado[35] and close personal friend of Scalia,[36] said in the same article that she had “no informed views” about authorship but expressed some interest in alternative candidates (though not endorsing any). Ginsburg is still in active service at age 83. Neither Souter nor Ginsburg has signed the SAC Declaration, and it would be a stretch to call either an anti-Stratfordian, but it is interesting that they decline to endorse the view of leading academic Stratfordians that no educated person should have any doubt about the orthodox attribution. With Stevens and Scalia still actively serving Oxfordians in 2009, and Chief Justice John Roberts, Jr., and Justices Clarence Thomas and Samuel Alito, Jr., declining to comment on the issue to the Wall Street Journal reporter, this left Stratfordians in a somewhat embarrassing position, able to claim only two overt supporters (Justices Anthony Kennedy and Stephen Breyer)—a mere 22% of the active Court in 2009![37]

As we look back on the last thirty years, we can reflect on a remarkable period in the Supreme Court’s history. Justice Scalia, given his strongly stated views on so many difficult issues that came before the Court, will probably always be controversial.[38] But we should remember and admire him for his patriotism, his dedication to public service, his intellectual brilliance, and his sheer love of family, life, and literature. It should also be recalled that he was a man of deeply abiding religious faith who loved the ancient traditions of his Roman Catholic Church. Readers may note that I have not yet commented on this aspect of his life or views. That is mainly because Justice Scalia himself insisted it had no consequence or influence on his legal philosophy or role as a judge.[39] Nor am I aware of any reason to draw a connection between his religion and his views on the authorship of Shakespeare.

The history recounted here is a good reminder, in an unusually divisive and troubling political year, that the Shakespeare authorship question is a shared enthusiasm that can and does bring together people of otherwise dramatically diverse political and other views. However, a mystery I have not been able to illuminate is the extent to which the Supreme Court justices may have influenced each other’s views about Shakespeare. It is well known among Court-watching lawyers that the Justices have surprisingly little influence on each other’s legal views, typically operating almost like nine separate law offices. Nor, according to many accounts, are the Court’s private conferences (contrary to what one might hope) the scene for much deep philosophical discussion —rather, apparently, more like what diplomats call “an exchange of views.” The Justices seem to debate each other mostly through the public media of oral arguments and published opinions.

What we do know, as traced above, suggests that Stevens and Blackmun interacted quite a bit regarding their Oxfordian interests, and perhaps with O’Connor, too. But Scalia’s and Powell’s views appear to have been well set long before they came to the Court. And even though Scalia and Ginsburg were known to be close friends who shared interests in opera and literature, no suggestion has yet emerged that the authorship question cropped up in their tête-à-têtes. Still, as we have seen, Ginsburg has demurely declined to endorse the Stratfordian theory and has expressed some interest in the issue. Perhaps more will emerge in time.

In any event, the authorship-doubting justices have spanned the entire ideological spectrum on the Court, from Scalia on the “right,” to O’Connor and Powell in the “center,” to Stevens and Blackmun on the “left”—though the constitutional law teacher in me compels the cautionary caveat that such simplistic labels fall far short of capturing the complexity and unpredictability of all of these judges. They all take seriously their oath to uphold the Constitution. We should also take seriously, as so many of them have, our pursuit of the truth about who wrote Shakespeare.

[1] Professor, Thomas Jefferson School of Law (San Diego), and member, Shakespeare Oxford Fellowship. I thank my beloved husband (and fellow Oxfordian), Ashish Agrawal, for his unstinting support of my lifelong studies in both law and Shakespeare.

[2] Scalia, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” in Scalia et al., A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed. 1997), 17 (emphasis in original), quoted in Wildenthal, “Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67,” 68 Ohio State Law Journal 1509, 1529 (2007). My 2007 article was itself, in a nice twist, cited several times in the opinion of the Court joined by Justice Scalia in McDonald v. Chicago, 561 U.S. 742, 763 n.10 (2010) (upholding application to state and local governments of the Bill of Rights, in particular the Second Amendment right to keep and bear arms, via the Fourteenth Amendment); see also id. at 829 n.10, 830 n.12, 841 (Thomas, J., concurring in part and concurring in judgment, also citing my article). For more on Scalia’s constitutional philosophy, see, e.g., Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849 (1989), George Kannar, “The Constitutional Catechism of Antonin Scalia,” 99 Yale Law Journal 1297, 1303-1308 (1990), Ralph A. Rossum, Antonin Scalia’s Jurisprudence: Text and Tradition (2006), and James B. Staab, The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (2006).

[3] In addition to my 2007 article (cited n.2), see, e.g., Wildenthal, “The Right of Confrontation, Justice Scalia, and the Power and Limits of Textualism,” 48 Washington & Lee Law Review 1323 (1991).

[4] Justice Scalia was a friend, as is Justice Ruth Bader Ginsburg, of my own dear friend Professor Susan Tiefenbrun, a faculty colleague. Thanks largely to her efforts, both Justices have generously visited our school multiple times. Odd as it may seem, Justices Scalia and Ginsburg themselves, poles apart ideologically (admired heroes of the Right and Left respectively), were themselves longtime personal friends. The photograph accompanying this article was taken in 2006 by Susan’s husband, Dr. Jonathan Tiefenbrun. I became interested in the SAQ around 2000, but did not really develop my Oxfordian views until after 2005. On the last occasion I met Scalia (in 2007), Susan and I enjoyed a private lunch with him and two other faculty colleagues. It would have been the perfect opportunity to discuss the SAQ! Instead, we chatted about other safely historical topics. I am strongly sympathetic to the textualist-originalist constitutional philosophy, though my take on it varies from Scalia’s. That, and what I now know to be our shared Oxfordian views, make me feel a certain kinship with him, despite our many disagreements.

[5] Jess Bravin, “Justice Stevens Renders an Opinion on Who Wrote Shakespeare’s Plays,” Wall Street Journal, April 18, 2009, p. A1.

[6] Looney, “Shakespeare” Identified in Edward de Vere the Seventeenth Earl of Oxford (1920); Dorothy Ogburn & Charlton Ogburn (Sr.), This Star of England (1952).

[7] Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (2009), 21.

[8] Biskupic, 24.

[9] Biskupic, 67.

[10] Biskupic, 11-17.

[11] This famous line in Jonson’s First Folio dedication poem, apparently playful and ambiguous, is most properly read (according to strict grammar) in a conditional sense (“though thou hadst … I would not seek” = “even if you had,” etc.), a point apparently first noted in 1879 by a Stratfordian scholar but typically overlooked or ignored by Stratfordians ever since. C.M. Ingleby, Shakespeare’s Centurie of Prayse (1879), 151-152, cited in Charlton Ogburn, Jr., The Mysterious William Shakespeare: The Myth and the Reality (1984), 231-233, and Richard F. Whalen, “‘Look Not on This Picture’: Ambiguity in the Shakespeare First Folio Preface,” Shakespeare Matters 10:3 (Summer 2011), 1, 29, 35; see also George Greenwood, The Shakespeare Problem Restated (1908), 474-475 & n.1; Ogburn & Ogburn, 1215-1216 & n.17; Whalen, Shakespeare: Who Was He? (1994), 55, 158 n.10.

[12] Kannar, 1316.

[13] Kannar, 1316.

[14] Scott Dodson & Ami Dodson, “Literary Justice,” 18 Green Bag 2d 429 (2015).

[15] Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (quoting Richard II, act I, sc. 1), quoted in Wildenthal, “Right of Confrontation,” 1333 & n.48 (also recalling a memorable clash between Justices Douglas and Harlan over the meaning of Edmund’s “Why bastard, wherefore base?” soliloquy, King Lear, act I, sc. 2, in a 1968 case concerning the law of illegitimacy).

[16] Henry IV, Part 1, act III, sc. 1, quoted in Johnson v. Santa Clara County Transportation Agency, 480 U.S. 616, 674 (1987) (Scalia, J., dissenting). Scalia’s point was to mock the majority’s claim that Johnson, the purported victim of affirmative action favoring women, was not “automatically excluded from consideration,” but was “able to have [his] qualifications weighed against those of other applicants.” Id. at 638, 674. Au contraire, Scalia apparently meant to suggest: Johnson, like Glendower, could call upon “consideration” but it was a foregone conclusion that no favorable decision would “come.”

[17] Bravin.

[18] After Justice Blackmun weakly protested that “you didn’t clear that with the rest of us,” Justice Brennan bluntly reasserted his ruling and stated that if his colleagues disagreed, “let them write the dissents.” Justice Stevens then joked that the standard could be “beyond a reasonable doubt” to match the letters of the “Bard.” Brennan offered nothing to support his high bar except a false premise: that no authorship doubts were expressed prior to the 1700s. “In re Shakespeare: The Authorship of Shakespeare on Trial—Opinions of the Justices,” 37 American University Law Review 819 & n.* (1988). See generally pp. 609-826, for the preface by David Lloyd Kreeger (the lawyer and philanthropist who was the main organizer of the event), articles and briefs by American University Law Professors Peter Jaszi (for Oxford) and James Boyle (for Stratford), and the transcript of the Justices’ comments (video of the entire debate may be streamed for free, or downloaded for 99 cents, with DVD available for $29.95, at https://www.c-span.org/video/?618-1/shakespeare-author-pseudonym). For a useful account of the whole affair, see James Lardner, “The Authorship Question,” New Yorker, April 11, 1988, 87-106.

[19] See generally SAC (https://doubtaboutwill.org).

[20] “Opinions of the Justices” (cited n.18), 822.

[21] “Opinions of the Justices” 824.

[22] “Opinions of the Justices” 825.

[23] SAC, “Notable Signatories” (https://doubtaboutwill.org/signatories/notable).

[24] Ogburn (1984).

[25] “Opinions of the Justices” 825.

[26] “Opinions of the Justices” 826.

[27] Bravin.

[28] Shakespeare Oxford Newsletter 45:3 (Dec. 2009), 1.

[29] Stevens, “The Shakespeare Canon of Statutory Construction,” 140 University of Pennsylvania Law Review 1373 (1992) (based on his 1991 Max Rosenn Lecture at Wilkes [PA] University); see also Stevens, “Section 43(a) of the Shakespeare Canon of Statutory Construction,” 1 John Marshall Review of Intellectual Property Law 179 (2002) (based on his 2001 Beverly W. Pattishall Inaugural Lecture in Trademark Law at John Marshall Law School, Chicago.

[30] Charlton Ogburn, Jr., The Mysterious William Shakespeare: The Myth and the Reality (2d. ed. 1992), vi.

[31] See, e.g., Diana Price, Shakespeare’s Unorthodox Biography: New Evidence of an Authorship Problem (2001, rev. 2012) (with supplemental discussion at http://www.shakespeare-authorship.com), Mark Anderson, “Shakespeare” By Another Name: The Life of Edward de Vere, Earl of Oxford, the Man Who Was Shakespeare (2005), Richard Paul Roe, The Shakespeare Guide to Italy: Retracing the Bard’s Unknown Travels (2011), and Professor Stritmatter’s web site (http://shake-speares-bible.com/about). See generally Shakespeare Beyond Doubt?: Exposing an Industry in Denial (John M. Shahan & Alexander Waugh eds. 2013).

[32] Ogburn (1992) vi.

[33] Bravin.

[34] See SAC, “Past Doubters” (https://doubtaboutwill.org/past_doubters) (also noting that Powell’s and Blackmun’s comments quoted in Ogburn [1992] vi, were stated in letters written to Ogburn after the 1987 debate).

[35] She has participated in several Shakespeare-related events, most recently a mock appeal by Shylock, the antihero of The Merchant of Venice. Rachel Donadio, “Ginsburg Weighs Fate of Shylock,” New York Times, July 28, 2016, C1.

[36] See note 4.

[37] Bravin.

[38] The vacancy created by Scalia’s unexpected death has been consumed by an unseemly political brouhaha, in which a majority of the U.S. Senate is engaging in an astonishing and historically unprecedented degree of obstruction by refusing even to consider President Obama’s nominee to replace him. See, e.g., Wildenthal, Academic Commentary, Jurist (Feb. 21, 2016, http://www.jurist.org/forum/2016/02/bryan-wildenthal-republicans-court.php); Wildenthal, “Memorandum on Supreme Court Vacancies and Confirmations During Presidential Election Years,” Thomas Jefferson School of Law Research Paper No. 2735256 (Feb. 20, 2016, http://ssrn.com/abstract=2735256).

[39] A fair-minded summary of his Catholic religious upbringing, and how it may generally have influenced him, is provided in Biskupic, 19-26, 185-210.

[Posted August 30, 2016.This article first appeared in the Summer 2016 Shakespeare Oxford Newsletter, published by the Shakespeare Oxford Fellowship.]
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