“Am I a hero or a monster?” the late Supreme Court Justice Antonin Scalia rhetorically asks a law school audience at the beginning of The Originalist, a dense and flat but thoughtful drama by John Strand exploring Scalia, his judicial philosophy of “originalism” (according to which the Constitution is to be interpreted solely on the basis of the text itself and the intentions of the framers), the antithetical approach of a “living Constitution” (according to which the Constitution is to be interpreted in a way that is flexible and sensitive to modern societal attitudes), major Supreme Court decisions of the past half century, Scalia’s Italian American upbringing, and the imagined relationship between Scalia and his unlikely law clerk: a “flaming liberal” African American lesbian who “detests” Scalia’s decisions and calls Scalia both a “monster” and a “puzzle.” In turn, Scalia calls her “misguided” and a “socialist.”
The play premiered in 2015 at Arena Stage in Washington, D.C. The role of Scalia was written for Edward Gero, a D.C. actor who has worked with the Shakespeare Theatre Company for more than 30 seasons. When the play (which is set during the 2012-13 Supreme Court term) premiered, Scalia was still alive, and Gero reportedly got the opportunity to meet with Scalia privately and observe him at the Supreme Court during oral argument. Arena Stage subsequently brought the play (which is directed by artistic director Molly Smith, who is best known for revivals of golden age musicals) back for an encore run, and it has been staged in other cities and broadcast on PBS. It is now finally receiving its New York premiere at 59E59, with Gero playing Scalia opposite English actress Tracy Ifeachor (CW vampire series The Originals) as Cat, Scalia’s law clerk.
The production recently made news when Supreme Court Justice Ruth Bader Ginsburg (who was a dear friend of Scalia, although they had polar-opposite judicial philosophies) appeared at a talkback and declared that she intended to remain with the Supreme Court for at least another five years, when she will be 90 years old (bringing some relief to those who are frightened of the prospect of Trump nominating yet another conservative to replace her on the bench).
For many reasons, the play brings me back to my days studying constitutional law at New York Law School, exactly 10 years ago, under Professor Nadine Strossen, the former chair of the ACLU and author of the new book HATE, on hate speech and the First Amendment. Strossen herself was a friend of Scalia in spite of their different viewpoints. She liked to refer to him as “Nino.” As with Scalia’s friendship with Ginsburg, one would think, how is that kind of relationship possible, and can the private Scalia really be so distinct from his public persona as “the most polarizing figure in American civil life”? Furthermore, while taking an elective course with Strossen, I attempted to write a play of my own that dissected constitutional law, but found the assignment to be impractical and resorted instead to writing (and performing) a one-man show/monologue/lecture about constitutional law intended for a non-lawyer audience.
The Originalist (which is a lot more interesting than most plays that I see in New York in any given year) displays the difficulties of the balancing act of trying to adequately and accurately explain judicial philosophies and landmark Supreme Court cases and issues (i.e. substantive due process, affirmative action, abortion, individual gun ownership, gay marriage) while also balancing the needs of plot and character development. The dialogue in the play often reads like footnotes or Wikipedia entries, in trying to summarize case after case, under the assumption that the audience needs background before breaking into a debate over Romer v. Evans and Lawrence v. Texas. The play’s structure (a sort of variation on The Odd Couple, an unlikely but rewarding work relationship, with a climax built around the gay marriage decision of United States v. Windsor) is clunky and old-fashioned. In an author’s note, Strand talks about the importance of compromise, but this notion gets lost amid the accusatory conservations between Scalia and Cat. The character of Cat is really just a mouthpiece, serving to challenge, provoke and expose Scalia, both his good side and his bad side. With that in mind, Ifeachor gives a performance of unrelenting activeness, with cheery and pained variations. On the other hand, Strand captures why Scalia is a fascinating and contradictory figure. Gero’s Scalia is chummy and congenial, but also combative and unapologetic, unrealistic and lacking in empathy, but a moral and humble man in his own way.
Strand does deserve credit for being able to condense and discuss so many legal arguments and controversies into a single 110-minute play. The Originalist would be a fine viewing or reading assignment for law school students on the eve of taking constitutional law, or for college students who are considering going to law school.
It is worth noting that the play leaves the audience with a different aftertaste today than it would have in 2015, during Obama’s presidency, when it looked as if Hillary Clinton was set to become the next president and the Supreme Court would soon have a liberal majority. During the play, Cat taunts Scalia with the prospect that his brand of obstinate originalism is on the way out. At present, it looks as if a conservative, even originalist, majority may be on the way in. Presciently, during the play, Scalia opines that upon his death half the country will celebrate and the other half will fight over his successor. Yes, indeed.