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Staging Scalia

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Staging Scalia

The Originalist misses the point of originalism. May 24, 2015
Arts and Culture
C. Stanley Photography
Edward Gero as Justice Antonin Scalia in John Strand’s The Originalist

Antonin Scalia is the only current member of the United States Supreme Court with a personality big enough to justify a stage play. And in playwright John Strand’s The Originalist, now playing at Washington’s Arena Stage, actor Edward Gero captures the justice’s gregarious charm without descending into caricature. It helps that Gero looks like Scalia; their families apparently hail from neighboring villages in Sicily. But while Gero’s performance is magnificent, the play fails to deliver on the promise of its title.

The play’s conceit is that Justice Scalia has hired a liberal law clerk, Cat, who, according to dictates of stereotype and melodrama, must be black, lesbian, and burdened with a comatose father. Cat and the justice argue about the nature of the law, but only at the level of first-year law students. Cat contends that texts lack an objective meaning, and that our interpretations are necessarily determined by our experience. Scalia counters with a few sentences in favor of originalism; judges should interpret a constitutional provision today in accordance with the publicly understood meaning at the time it was enacted.

But Strand doesn’t appear to comprehend Scalia’s reasons for being an originalist. The character Scalia states that he is an originalist because the Constitution was made by a group of brilliant, never-to-be-replicated men. The real Justice Scalia argues that following original meaning promotes clear rules and limits judicial discretion. Strand is no Tom Stoppard, who catches the subtleties of his protagonist’s ideas and makes them sound even more eloquent than their historical expressions. Strand has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.

The play also assaults the character of conservatives. Brad, a buffoonish member of the Federalist Society, turns up to assist Cat with research on the pending case regarding the Defense of Marriage Act. Since Brad is not a law clerk, he would never be allowed to join deliberations on a case. When Brad loses a low-level argument with Cat, he responds by throwing a pizza at her, and they proceed to have a food fight. He then leaks Cat’s sexual preferences to Politico in hopes of embarrassing her into resigning.

“Scalia” dismisses the article, saying that Cat’s private life is her own. The message is that he is at least a dignified conservative—unlike the modern sorts who have no substantial arguments, only slimy tactics. But Scalia also makes damaging admissions about himself, suggesting that while Chief Justice William Rehnquist was dying, he tried to smooth his own path to the center chair. No credible historical evidence I have seen exists for this claim. Moreover, the reason the character Scalia gives for seeking elevation is patently ridiculous: he says that he could have saved the country if he’d been promoted to chief justice. One need not be a close watcher of the Supreme Court to recognize that even a chief justice has but one vote. A Chief Justice Scalia would not have changed the course of history.

Mistakes about basic facts and character assassinations of conservatives are almost de rigueur in contemporary dramas, whether on stage or screen. But the play’s real focus is ultimately not politics; it’s psychology. Scalia is a “puzzle” Cat seeks to solve. What led him to being a conservative showman? The answer, murky even on the play’s own terms, has something to do with impressing his father. Strand draws a weak parallel with Cat, whose legal achievements provided her dying father’s only solace.

The play’s treatment of biography as destiny reflects powerful currents of our time. The media persistently dissect motivations and psychology at the expense of principles and ideas. Much of the coverage of same-sex marriage, for instance, has focused on what it will mean for the various justices’ legacies.

Nothing is more conventional in an individualist culture than proclaiming that only the peculiar passions and desires of individuals matter. Our Constitution is founded on the premise that abstract principles, not passions, best restrain government. Most of the Constitution’s core principles—such as federalism and the separation of powers—don’t establish political objectives, only the dull procedures by which we decide them. But in an age when everyone must celebrate his own authenticity, a jurisprudence of self-restraint and impersonal discipline sails against the wind.

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