Antonin Scalia, SCOTUS, Supreme Court, Theater

ATL Theater Review: The Originalist

If you're interested in theater, the Supreme Court, or both, check out this new play about Justice Antonin Scalia.

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Justice Antonin Scalia is the most polarizing member of the U.S. Supreme Court. Some people (myself included) love him, and some people loathe him. Even his attempts at humor can be controversial.

Given the strong feelings that Justice Scalia inspires, it makes perfect sense that he’d be the current SCOTUS justice to inspire a play based on his time on the Court. (Yes, a Justice Ginsburg biopic starring Natalie Portman is reportedly in the works, but it will likely focus on her pre-robescent career as a leading litigatrix for women’s rights.)

Back in March, Arena Stage in D.C. started hosting performances of a play based on Justice Scalia’s life and jurisprudence, called The Originalist:

Four-time Helen Hayes Award winner Edward Gero (Red) returns to Arena Stage as one of America’s most brilliant and polarizing figures: Supreme Court Justice Antonin Scalia. When a bright, liberal Harvard Law School graduate embarks on a nerve-wracking clerkship with Justice Scalia, she discovers him to be both an infuriating sparring partner and an unexpected mentor. How will their relationship affect one of the most incendiary cases ever to reach the nation’s highest court? From Charles MacArthur Award winner John Strand (Lovers and Executioners) comes this daring new work about passionate people risking heart and soul to defend their version of the truth.

The play, directed by Molly Smith, has been well received. It has garnered positive reviews (see links collected below) and been extended twice. It’s now playing at Arena Stage through May 31.

I saw The Originalist last month while visiting D.C. from New York. My ruling: cert granted. This play is worth your time and consideration, especially if you are interested in the Supreme Court and its work. It’s far from perfect — I will share with you some of my objections — but it’s interesting, entertaining, and reasonably accurate on the legal aspects (which makes sense, since it’s based in part on veteran Court watcher Joan Biskupic’s biography of Scalia (affiliate link)).

The strongest reason to see the play is Edward Gero’s remarkable performance. Gero invested a lot of time into researching the role, including hanging out with Justice Scalia, and the effort shows. Of course, it doesn’t hurt that Gero looks and sounds a lot like the justice (note that their families come from the same part of Italy). A friend of mine who clerked for Justice Scalia and saw the play praised Gero’s performance as uncanny.

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The play opens with Justice Scalia delivering a speech at a law school about originalism, his theory for statutory and constitutional interpretation. This discussion, based on actual speeches and talks given by the justice, offers audience members unfamiliar with originalism a decent overview of the subject. (One small issue with this opening monologue: in stressing how Justice Scalia rejects the “living Constitution” theory, it fails to acknowledge how originalism does allow for constitutional change — through amendment, not judicial fiat.)

During the speech, Justice Scalia gets confronted by an argumentative young African-American woman, a Harvard Law School student named Cat. It turns out that the brilliant but flamingly liberal Cat has a clerkship interview lined up with the justice — who ends up hiring her, as the liberal voice in chambers aka “counter-clerk.”

(Justice Scalia hasn’t hired a counter-clerk in years — by my reckoning, not since October Term 2002 — but I don’t begrudge John Strand this plot element. I know what it’s like to try and create a work about appellate litigation and the clerkship world that’s both historically accurate and dramatically compelling. I took a few liberties in writing my (generally realistic) new novel, Supreme Ambitions (affiliate link).)

The rest of the play chronicles Cat’s time in chambers and how she and Justice Scalia influence each other, with their adversarial relationship evolving (perhaps predictably) into one of mutual respect and understanding. The main strength: the well-drawn connection between the two characters, developed through frequently funny and thought-provoking dialogue that nicely captures the special judge-clerk bond. The main weakness: the lack of a central “what happens?” question to propel the plot forward. Two possible candidates — one involving Justice Scalia’s rumored desire to become chief justice (the slot that ultimately went to John Roberts), and one involving whether certain language will or won’t make it into the justice’s final opinion in United States v. Windsor — feel tacked-on and insufficiently high-stakes.

If Justice Scalia, as written by Strand and as played by Gero, is the strongest part of The Originalist, then Cat, as written by Strand and as played by Kerry Warren, is the weakest. It’s tough to tell whether this is due to the writing or the acting. In terms of the writing, it’s clear that Strand wanted to create a clerk character who would stand up to the justice — but the part of Cat is written too belligerently, in a way that’s distractingly unrealistic. You don’t need to be a lawyer to know that no subordinate would ever address her boss, who also happens to be a Supreme Court justice, so insolently. As for the acting, suffice it to say that Warren isn’t Gero’s equal, which creates an imbalance in the struggle — and perhaps makes the audience more sympathetic to Scalia and to originalism than perhaps the creative team intended. When Justice Scalia and Cat get into their intellectual sparring, you end up rooting for him over her because he’s so witty and charming — Strand has given Scalia some of the best lines — and she’s so strident and annoying (like a certain kind of liberal we’ve all come across).

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There’s a third member of the cast, Brad (Harlan Work), a Federalist Society operative supposedly brought in to work on Justice Scalia’s Windsor opinion. I know everyone loves the vast right-wing conspiracy, but this detail was a bit ridiculous; some random Fed Soc staffer wouldn’t be brought into chambers to work on a case, to say nothing of a case as high-profile as Windsor. For plot purposes, Brad, a die-hard conservative and white male, needs to resent Cat, a bleeding-heart liberal and African-American woman, for having snagged a coveted clerkship with his judicial idol. So Strand should simply have made Brad a clerk to one of the retired justices. That would explain why Brad wound up working on Windsor — clerks to retired justices get farmed out to assist active justices — and yet still allow Brad to envy Cat for having snagged his dream job.

Such quibbles aside, The Originalist is worth seeing for legal-industry insiders — i.e., the audience of Above the Law — and others with a keen interest in the workings of the Supreme Court. There aren’t enough works of art and literature that focus on our fascinating profession, and even fewer that do so in a fairly realistic way, so the ones that do deserve our support. You can buy tickets to The Originalist through the Arena Stage website — but the show closes on May 31, so don’t delay.

Disclosure: As a member of the media, I received a complimentary ticket to the play.

Review: ‘The Originalist,’ About Scalia, Opens in Washington [New York Times]
‘The Originalist,’ a New Play About Justice Antonin Scalia by John Strand [New York Times]
Scalia and the intern, punching from right and left in ‘The Originalist’ [Washington Post]
‘The Originalist’ Actor Edward Gero on Portraying Justice Antonin Scalia [Speakeasy / Wall Street Journal]
The Originalist [National Review]
Scalia Fan Fiction [Slate]

Earlier: In Defense Of Justice Scalia
Which Supreme Court Justice Is The Star Of A New Play?
ATL on Broadway: A Review of David Mamet’s Race
The Theater of the Courtroom (Or, A Review of A More Perfect Union)
ATL Theater Review: Thurgood

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