If you are looking to understand the life and times of the Supreme Court’s longest-serving justice, Antonin Scalia, The Originalist — currently playing at the Arena Stage in Washington, D.C. — will be of only modest help. The artistic depiction of Justice Scalia reveals some of his achievements and philosophy, but the acting can’t quite make up for the story’s cognitive dissonance.
The play centers on the relationship between Justice Scalia and a fictional left-wing Harvard Law graduate named Cat. Cat interrupts a speech by Scalia for the sole purpose of arguing with him, and then informs him that she has a clerkship interview with him for the following year. The rudeness somehow doesn’t scuttle her chances, and she is ultimately hired as Justice Scalia’s “counterclerk,” a liberal clerk who serves as his in-chambers sparring partner. Their discussions ramble over a broad range of legal and policy issues, ending with Scalia’s dissent in Windsor v. United States (2013).
Justice Scalia is played by Edward Gero, who brings life and excitement to the stage every time he appears, and who just happens to be a dead ringer for the senior justice (his family apparently comes from the same region of Sicily as Scalia’s). Kerry Warren plays Cat, the devil’s advocate, who circles the aging justice like a predator stalking her prey. Although the acting is good, its emotional intensity sometimes seems amped up to balance the dryish legal and political arguments that are the bulk of the dialogue.
Artists who seek to address contemporary political history risk either domesticating their subject or pandering to the audience. The Originalist avoids both errors, but just barely, and at times it has trouble making up its mind. Is Gero supposed to be the warm and caring Justice Scalia that his clerks know, or is he, in playwright John Strand’s words, a “divisive personality”?
Strand’s version of Scalia churns with dismissive hostility, anger, and aggression, so when he drops everything to console Cat after learning about a tragedy in her family, the instantaneous Hyde–Jekyll transformation is abrupt and disorienting rather than illuminating. Strand is trying to draw out a distinction between Scalia-the-person and Scalia-the-judge, but that’s not quite right either. To be sure, Justice Scalia is an aggressive questioner from the bench and is relentless in stating his opinions honestly, but he’s also a close friend of Justice Ruth Bader Ginsburg, whose contrary views on controversial issues are just as outspoken as his own.
The Originalist occasionally manages to eruct an insight. Late in the play, for instance, Cat admits that she has matured in her self-understanding and tells Scalia that when liberals depict him as a monster, they’re just seeing their own fears in the mirror. There’s doubtless some truth to that observation, although it’s a bit too pop-psych to cause the audience to reflect. It’s also out of place: The play has just spent two hours portraying Scalia as a cantankerous grouch. And hooray for character growth and all that, but the English language has words to describe projection of one’s own fears onto political opponents: “demonization,” “prejudice,” “bigotry.”
At times, one wonders if Strand really understands originalism. At the very beginning of the play, Justice Scalia delivers a monologue that includes an accurate statement of originalism: The Constitution (and statutes) should be interpreted as written, and as understood by those who wrote them. But on the basis of what follows, you’d never know that the time-honored form of judicial conservatism known as originalism is any different from political conservatism. Originalism can’t tell you what the top marginal tax rate should be, but it can tell you what limits the Constitution places on the taxing power.
And then there are the clichés. There’s fanciful talk of secret meetings between Dick Cheney and Justice Scalia, an entire subplot depicting the Federalist Society as a secret cabal that informally writes Supreme Court opinions, and a fictional admission that Bush v. Gore (2000) was really just a plot to put a Republican in the White House. In one unintentionally hilarious scene, Scalia teaches Cat how to fire a “hunting rifle,” which is actually a semiautomatic AR-10 assault-style rifle. (I don’t know what kind of rifle Justice Scalia hunts with, but I doubt that it’s an AR-10.) At one point, Cat pleads with Scalia for civility, a particularly ironic request from a character whose role is to carry on one-half of a shouting match.
Strand occasionally tries to temper his leading character’s domineering style, but the result is incongruous. Strand’s Scalia, for instance, muses confidentially that originalism could “set things right again in this country,” that he is “one of the last preservationists” of the Constitution, and so forth. And Strand’s Scalia is devastated by not being appointed chief justice, because that would have “changed the world.” But no originalist — least of all Justice Scalia — would make starry-eyed claims that originalism could fix everything. Congress and the president can, do, and will continue to make bad laws. Originalists assert only that the meaning of statutes and the Constitution is fixed at the time of legislation and can be discerned and applied through faithful application of traditional legal methods. This is not quite bumper-sticker material, but it’s an eminently realistic way to view the law.
The Originalist does get one important thing right, though: Justice Scalia’s influence on the field of constitutional law has been monumental. It is no exaggeration to say that originalism has changed the face of American constitutional law and the legal academy. Even many liberal law professors, including Yale Law School’s Jack Balkin, now claim to be originalists. Former Yale law professor Robert H. Bork, one of originalism’s earliest expositors, would have been very proud.
When your opponents start adopting your arguments as their own, it’s a good sign that you’ve won the battle of ideas. By that standard, Justice Antonin Scalia has much to be proud of.