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The Originalist

Justice Scalia: A Shakespearean Monster

By John Strand
The Kogod Cradle, Arena Stage, Washington, D.C.
Wednesday, April 15, 2015, G-11&12 (middle of center seating in deep thrust theater)
Directed by Molly Smith

Scalia in a dark suit and tie stands at one end of his large oak desk with leather chair  at the center underneath one of two chandeliers on a stage with the light coming through paned windows casting shadows on the parquet stage and red curtain in the background.
Edward Gero as Supreme Court Justice Antonin Scalia in The Originalist, a new play by John Strand at Arena Stage. Directed by Arena Stage Artistic Director Molly Smith, the play features set design by Misha Kachman and lighting by Colin K. Bills. Below, Cat (Kerry Warren, right) argues her opinion to Scalia as Brad (Harlan Work) listens. The play profiles Scalia through his interactions with Cat, his liberal law clerk. Photo by C. Stanley Photography, Arena Stage.

The liberal law clerk tells Supreme Court Justice Antonin Scalia that he is "probably the most polarizing figure" in America. This raises Scalia's ire: "Probably?" he roars. "I hold the title!"

By the way, this law clerk, Cat, works for Scalia in John Strand's new play, The Originalist, commissioned by Arena Stage in Washington, D.C., and directed by Arena Stage Artistic Director Molly Smith. Strand's three-actor play profiles one of the Supreme Court's most conservative justices. It is a fiction in terms of Cat's story but mostly an accurate profile of the justice himself, as Strand has tons of material to work with, from Scalia's court opinions and speeches to news accounts of the court's inner workings. Strand is also depicting a powerful man who works less than two miles from Arena Stage, so getting him right seems like a good idea.

Which is not to suggest Strand compromises in his presentation of Scalia, played with respectful character detail and gusto by Edward Gero, because Scalia is not a compromising figure. He is a complex one, though. "What I was amazed about in John's play is his ability to be able to write about the man who is gregarious, funny, charming, idiosyncratic, strategic, playful, and kind of a bastard at times," Smith writes in the program notes. "There is nothing easy about Scalia."

You could say he is a Shakespearean character, and Cat (Kerry Warren) even suggests this in the play, an idea that pleases Gero's Scalia. Cat starts with what he is not: Hamlet, because Scalia would have killed Claudius at prayer, ending the play in Act Three, she says. Scalia himself suggests Richard III. Cat, though, offers up Caliban from The Tempest, buying into Trinculo's identification of the native islander as a monster, but she settles on Prospero as a man trying to regain his past through false images—except, she notes, Prospero has a heart; Scalia does not.

We'll see in due course that she's wrong: Scalia has a big heart. But she gets a lot wrong in this passage—though she certainly has the Hamlet parallel right. Her choice of Caliban would seem a strange one on the surface except for her fixation on Scalia as a monster; but as any fan of the play knows, Caliban is not so much a monster but a misunderstood and misunderstanding "other" (foreigner to the Italians but, of course, actually the native of the island): a man who distills the island experience to its natural essence. If not Cat, does Strand himself see such a one in Scalia?

Cat also doesn't understand that Shakespeare's real "monsters" are never two-dimensional and usually have a most human soul. Scalia shows better understanding of this and even the larger context of the character when he suggests Richard III. There's the historical Richard, and there's the fictional Richard drawn by his enemies, the Tudors (as Cat would later point out to Scalia, it's the next generation that writes the epitaph). Then there's the Shakespearean Richard, based on the Tudor view of an evil monster but yet an endearing personality, spinning a weblike charm that enthralls even Lady Anne, let alone the audience. That charm is not merely a surface charm, either; in soliloquy, Richard is himself, and in this pure form he is yet admirable to us even as he spells out the mischief and murders he intends.

The Originalist opens with Scalia in a soliloquy, as Gero enters in his justice's robe singing along to an opera soundtrack. He loves opera, he tells us, and one of the things he likes about it is that the score is based on a series of notes, notes that never change, however the conductor or singer might interpret them. That, he says, is true of the U.S. Constitution, too, a document intended not only to establish a government but also to guide future generations in maintaining that government against the varying tides of time. "I am not an ideologue," he says. "I'm an originalist."

Turns out that this is not a soliloquy but a speaking engagement, and Scalia opens the floor for questions. One member in the audience asks the first question which quickly leads into a debate; this person is Cat (an uncredited member of the cast is the house manager, who moves to silence the persistent questioner but is waved away by Gero's Scalia). And Cat informs him that she is the candidate for the position of his new law clerk.

Cat's purpose to the play would seem to be providing a counterview to the ultraconservative Scalia—and she starts out that way in her job interview in Scalia's office. But as anyone who has read his opinions and speeches will tell you, Scalia's sharp intelligence and grasp of constitutional law imbues his arguments with such clear logic that he tends to sway more than can be swayed. Cat's and Scalia's debates over gun rights and first amendment rights lead to clear victories by the justice over the law clerk, and not merely by Scalia's force of personality, his uncanny skill at winning at cards, and his tendency to zip off great punchlines. Strand also gets beyond Scalia's public face to the private man who counts among his closest friends Justice Ruth Bader Ginsburg, one of the Supreme Court's most liberal justices whom Scalia calls "brilliant," which Gero speaks with the look of a lover's contentment.

Cat actually comes to represent a majority of Americans, those ranging somewhere between the far-left and -rights, people with liberal ideals but personal conservative longings, people who take to heart the Constitution's preamble "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The fact that Scalia would even hire her is her first lesson. He teaches her how to use a firearm at a shooting range, and he assigns her to be his lead clerk on United States vs. Windsor, the case that struck down the federal ban on gay marriage. She is charged with finding holes in the arguments on both sides—which she does. Warren gives us a key moment of Cat's self-realization when she stands by the hospital bed of her father, victim of a massive stroke, and reads him the texts from her liberal friends condemning her for joining Scalia's team (which the Harvard Law School graduate did, by the way, because she lost a bet). Though she agrees with their political stances, her friends' vitriol bothers her because they don't accurately define the man she's come to know. And it is this man who stands by her side at her father's funeral. That Cat's argument tempers the tone of Scalia's Windsor dissent, eh, that seems too pat a device in The Originalist's plot, though some might say it's as good an explanation as any for the real Scalia's enigmatic declaration in the case.

If Strand plays his own political hand in this play, it is in the character of Brad (Harlan Work), an ultraconservative classmate of Cat's whom Scalia brings in to help her on the Windsor case. Classmates at Harvard, they already can't stand each other, and we soon side with Cat on this one because Brad is not only unyielding but a whining, grating, butt-kisser who uses subterfuge to get his way—proving that he is the one who most underestimates Scalia. It's not simply that Brad is a caricature of the far-right—I would even argue that he's not a caricature of some people I know in that camp—it's that Strand provides no similar caricature on the far-left, for even if Cat starts out that way, she ends up seeking to start a national movement called "We'll set up camp in the middle—there's plenty of room," she tells Scalia. "No extremists allowed." Ever the realist, he laughs at her: "Good luck with that," he says.

Smith directs The Originalist with intelligent simplicity, letting the personalities and Strand's dialogues fill the scenes. Misha Kachman's set for the deep thrust stage is a gold-trimmed red curtain along the back representing the courtroom in the Supreme Court and two crystal chandeliers. A desk is moved onto the stage for the scenes in Scalia's chambers, and a metal shelf raises through the front end of the stage for the rifle range and then lowers to become the table where Cat and Brad work. Lighting Designer Colin K. Bills vies with Gero as the star of the show by setting scenes via light patterns that indicate the sun coming through paned windows, casting shadows on the floor and curtain. The hospital bed in which Cat's father lies is represented by a rectangle of light on the floor; his grave is represented by a rectangle of shadow.

Scalia in a black tux sits at his desk with Brad, also in a tux, standing behind them, both looking past Cat in a long, black-and-gray-striped sweater and dark gray blouse and pants, her hands outstretched in agitation. The cast embraces their characters well, which makes Warren seem almost too earnest as Cat, and Work too slimy as Brad. Gero, though, gives a remarkably nuanced performance of the remarkably nuanced Scalia. He's tough, he's soft, he's stern, and then goes comical in an instant. The physical acting is all in his facial expressions and tapping fingers; the acrobatics of his performance comes from displaying Scalia's intellect and heart.

In the opening scene as he describes his role of championing a strict constructionist interpretation of the Constitution, Gero's Scalia asks rhetorically, "Where would the country be without me?" In restating this position with Cat later in the play, he says, "We are still the most successful democracy on earth. Every day I work to protect that." This is the heartbeat of Scalia as Supreme Court justice. I contend that Scalia has sometimes put his political views ahead of his constitutional principles—an opinion the Scalia in this play would easily crush, I admit, though the Scalia in this play does boast of his pugilistic skills in political theater. That said, he generally has been consistent in his interpretation of the Constitution as a working document for a republic with checks and balances across two dimensions: the three branches of the federal government and the three geopolitical levels—national, state, and local—of government. If he's less consistent with subsequent amendments post–Bill of Rights, it's might be in his resistance to another dimension: time passing.

Nevertheless, in this week of oral arguments in the cases concerning the status of gay marriage at the state level, while most pundits consider Justice Anthony Kennedy as the swing vote, I say don't underestimate Scalia's role in the ultimate decision. "Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many," Scalia wrote in his Windsor dissent. "But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."

Eric Minton
May 1, 2015


Scalia, by any other name would smell as hypocritical. You say, with self-effacing mildness: "I contend that Scalia has sometimes put his political views ahead of his constitutional principles—an opinion the Scalia in this play would easily crush, I admit, though the Scalia in this play does boast of his pugilistic skills in political theater…"

You sell yourself woefully short. Your review—and I would suppose by that, Strand's play—seems to overlook the egregiously political nature of Scalia's judicial decisions, which invariably conform to right wing ideology and further the interests of corporations and the very rich, no matter how constitutionally dubius. The play seems to establish Scalia's formidable talent for cloaking politically tainted decisions in "originalist" sophistry, sugared by the man's wit and charm. Actions, nevertheless, speak louder than rhetoric, no matter how slick.

Umberto Tosi
May 3, 2015

Editor's Note

I have, in two commentaries, broached the topic of cell phone use in theaters and how companies can address it. Arena Stage uses a cool method before The Originalist. A cell phone rang in front of us, and then behind us and then over there and soon we were surrounded by various ringtones, buzzes, beeps, poing-poing-poings, and doodle-doodle-doots. We could even feel vibrations. Many people in the audience—even I, though I had already shut mine off—took out their cell phones to check them, and so they were in our hands when the voice-over told us to make sure they were off. Despite what I thought was an effective approach, about 10 minutes into the play, some guy about 10 seats over from us took a look at his too-brightly-lit iPhone screen, causing at least nine of us if not double that to turn our attention away from the action on the stage. Scalia may be larger than life, but he's not larger than a lit-up cell phone screen in a dark theater.

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