Shakespeare in Court

One of the many ways in which the United States remains - at least from the perspective of this side of the Atlantic - gloriously, unrepentantly old-fashioned is in its lack of a mandatory retirement age for senior judges. The result - combined with the divisively political nature of the nomination process, which encourages incumbents out of sympathy with the administration to cling on as long as possible - is that the Supreme Court often boasts some very elderly judges. The oldest ever was Oliver Wendell Holmes, who was finally persuaded to go by his colleagues at the age of ninety. Today's longest-serving member of the bench is Justice John Paul Stevens, who is 88. The court's veteran liberal, he is likely to hang up his gown very soon, having achieved his aim of surviving the Bush administration. In the meantime, according to Jess Bravin of the Wall Street Journal, he has been worrying about the true authorship of the works of Shakespeare.

Stevens is one of that relatively small but persistent band who doubt that a glovemaker's son from Stratford upon Avon wrote Hamlet, Romeo and Juliet or even The Two Gentlemen of Verona. He has been on the case for more than twenty years, ever since he took part in a mock trial of the authorship question, and found no conclusive evidence that Shakespeare was Shakespeare. Which may, of course, simply mean that the rules of evidence developed for use in courts are of no more use in deciding questions of historical fact than in resolving scientific questions. He now says that it is "beyond reasonable doubt" that William Shakespeare did not write the plays. Instead, he is one of that small but determined band of literary heretics convinced that the plays were written by Edward de Vere, Earl of Oxford - a theory first put forward by a certain Mr JT Looney.

The report claims that "several justices across the court's ideological spectrum say he may be right". In fact, the only serving judge prepared to go on the record as agreeing with his view on the matter is the arch-conservative Antonin Scalia. I can't imagine they agree on much else. Scalia thinks it unlikely that the plays could have been written by someone from Shakespeare's comparatively humble background. With his usual decisiveness, he asserts that "pro-Shakespearean people are affected by a democratic bias". Stevens, meanwhile, compares the conventional story to belief in Santa Claus.

Stevens also claims that retired justice Sandra Day O'Connor ("Swinging Sandra", the legal weathercock who handed the presidency to George W Bush back in 2000) shared his doubts about Will. One who doesn't, Justice Anthony Kennedy, thought it a reflection of Stevens' "influence and power" that only two of the nine were prepared publicly to support the traditional view of Shakespeare's identity. Most, including Chief Justice Roberts, either declined to comment or proclaimed their ignorance.

The clincher for Stevens was the curious absence of books in Shakespeare's house in Stratford. "Where are the books?" he asks. "You can't be a scholar of that depth and not have any books in your home". I suspect he overlooks the very different culture of Elizabethan England, where education entailed memorising large chunks of literature. Only the very wealthy had large libraries. As for de Vere's claims to authorship, His Honor points to his interesting connections:

Justice Stevens mentions that Lord Burghley, guardian of the young de Vere, is generally accepted as the model for the courtier Polonius in "Hamlet." "Burghley was the No. 1 adviser to the queen," says the justice. "De Vere married [Burghley's] daughter, which fits in with Hamlet marrying Polonius's daughter, Ophelia."

What? Hamlet married Ophelia? When did that happen? No-one invited me.

This isn't the place to rehash all the arguments over authorship, and I have neither the expertise nor the desire to do so. I would just mention that, like all conspiracy theories (which is basically what they are) alternative authorship theories are more or less unfalsifiable. When expected evidence doesn't turn up, or seems to point in a contrary direction, that doesn't deter the true believer at all. There's a good example of this with Stevens:

Justice Stevens can indulge his love of the Bard at the Folger Shakespeare Library, a block from the Supreme Court. He says he had a particular brainstorm after learning the library held a Bible that once belonged to de Vere.

"In two of the plays Shakespeare has an incident using the bed trick, in which the man is not aware of the identity of the woman he's sleeping with," Justice Stevens says, referring to "All's Well That Ends Well" and "Measure for Measure." "And there's an incident in the Old Testament where the same event allegedly occurred."

Justice Stevens says he reasoned that if de Vere had borrowed the escapade from his Bible, "he would have underlined those portions of it. So I went over once to ask them to dig out the Bible."

Unfortunately, the passage involving the substitution of Leah for Rachel in Jacob's bed, Genesis 29:23, was not marked. "I really thought I might have stumbled onto something that would be a very strong coincidence," Justice Stevens says. "But it did not develop at all."

To be fair to de Vere, people in those days were sufficiently familiar with the Bible to know these stories by heart - and I'm not sure it was the done thing to deface Bibles by underlining passages useful for purely secular purposes.

The job of a judge, of course, is to weigh evidence and come to impartial conclusions regardless of prejudice or vested interests - a calling that the Supreme Court Justices have always performed with distinction. The vast majority of scholars think the Oxford theory is complete bunkum, but that in itself is no reason to doubt the cogency of Stevens' reasoning, or to wish him a speedy retirement.