In The Originalist, Theater Tries to Interpret Antonin Scalia

The Originalist, a world-premiere play by John Strand at Washington’s Arena Stage, explores the personality and legacy of an atypical theatrical character: Supreme Court Justice Antonin Scalia. “He has intrigued me for a long time because he’s kind of a lightning rod,” says Strand in the program notes. “Half the country thinks of him as a monster, and half thinks of him as a hero … How can you resist a character who’s a brilliant jurist, and also a showman at heart?”

The play attempts to unpack Scalia’s intellectual commitment to originalism, and the extent to which his personal beliefs have any influence on his interpretation of the law. The Atlantic’s two Supreme Court correspondents, Jeffrey Rosen and Garrett Epps, discuss the success of The Originalist, both as an analysis of judicial process, and as a theatrical interpretation of a divisive and fascinating individual.

Rosen: As an evening at the theater, I thought The Originalist was entertaining. Edward Gero, who looks remarkably like Justice Scalia, offered an eerily convincing physical impersonation of the justice—down to his Jackie Gleason slow burn, his operatic facial expressions and hand gestures, and his belly laugh. As an opera lover, I enjoyed playing name-that-tune for the music between the scenes. (After Scalia teaches his liberal law clerk how to shoot a semiautomatic assault rifle at a private shooting range in Northern Virginia, the speakers piped out the song from Cosi fan Tutte expressing doubt in Italian about “stability in a soldier or virtue in a man.”) There were plenty of clever lines that had the audience in stitches.

SCALIA: Just how liberal are you anyway?

CLERK: Sir, I fall into the ‘flaming’ category.

SCALIA: Probably every liberal’s fate in the afterlife.

And the broad ambition of the show—to dramatize the intellectual, political, and cultural stakes in the battle of ideas at the Supreme Court over how to interpret the Constitution—is entirely worthwhile.

But in my view, the play failed to achieve that ambition, because it presented a liberal fantasy of the debate over originalism, rather than presenting both sides in the actual debate over originalism itself. When Scalia asks early on, “Anybody need a definition of originalism?” a guy in the front row exclaimed, “Yes!” But the show never offers a fair-minded definition. Basically, Strand has pitted a caricature of Scalia, the results-oriented moralist, against a 21st century caricature of William O. Douglas, the romantic liberal activist who thought that judges should advance progressive causes regardless of what the text and history of the Constitution says.

The broad plot of the show can be summarized via a song from the musical Damn Yankees: “(You've Gotta Have) Heart.” A liberal law clerk of color persuades Justice Scalia to hire her as a clerk because he wants a sparring partner. She tries to persuade him that his philosophy is wrong because it has no heart. Scalia assigns her to help him prepare for the Windsor case, evaluating the constitutionality of the Defense Against Marriage Act. The clerk’s rival, a wicked, bigoted Aryan Federalist Society conservative, leaks to Politico that she’s a lesbian, but only after calling her a “socialist bitch,” bellowing, “I am a race!” and throwing food at her. After Scalia magnanimously accepts her sexual orientation (“your private life is none of their business”), he further proves his humanity by saying a prayer for her recently departed father at the Catholic University Basilica. He refuses to uphold gay marriage but agrees at her urging to insert a line in his dissenting opinion in the Windsor case recognizing that “there are good people on all sides” of the debate. Still, because she “detests” his dissent, the clerk sticks by her judgment that Scalia is “a monster.” Scalia replies that “being the monster is half of the fun.” They chuckle and the stage goes dark to Verdi’s drinking song, “Libiamo” from La Traviata. The audience cheers.

In addition to its tendentious villainizing of the Federalist Society, the partisan premise of the play is obvious from its repeated references to Scalia as a monster. He begins the show in his first soliloquy by declaring that the secret of his charm is that “I tell people what they don’t want to hear. It is also want makes me a monster. That’s how half the country sees me … the other half sees me as a hero.” The liberal clerk (her name is Cat) decides to clerk for Scalia because she wants to recover the center in a polarized time. “There is a middle. It’s deserted … The middle takes guts. The middle is where you go to sit down with monsters.” And that’s why it’s so important to her that Scalia inserts a made-up line into his dissent: “I acknowledge that few public controversies inspire such attendant passion–passion by good people on all sides.”

In the show, this made-up line about “good people on all sides” follows a paraphrase from Scalia’s actual Windsor dissent, where we finally learn why he refers repeatedly in the play to “monsters.”

It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to recognize same-sex marriage is not at issue here – they have just lectured us on their superior moral judgment in favor of same sex marriage! In a struggle like this one, it is hard to admit that one’s political opponents are not monsters.

Here, however, is the actual, unedited language from Scalia’s dissent:

It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it … In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle … We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

In other words, the entire thrust of Scalia’s Windsor dissent is that the people and their representatives in Congress, not the courts, should decide the fate of same-sex marriage. But in order to allow the democratic process to take its course, the justices in the majority would have to acknowledge that the people and their representatives in Congress are not monsters. The author, John Strand, flips this into an acknowledgment by Scalia that proponents of same sex marriage, who are seeking to overturn Congress’s judgment by judicial fiat, are not monsters. That’s because it’s more important to Strand that Scalia acknowledge the good faith of liberals’ devotion to equality than that liberals acknowledge the good faith of Scalia’s devotion to judicial restraint. Any sense that Scalia is arguing for judicial deference to democratic decision-making, rather than making a moral judgment about the heinousness of same-sex marriage, disappears.

This confusion between moral and constitutional judgments suffuses the entire play. Cat, channeling William O. Douglas, declares, “The law, without heart, has no grandeur.” Scalia replies, “The law, when it is sentiment, is not justice, it is wishful thinking, a fairy tale in search of a happy ending.” And then throughout the show, Strand mischaracterizes Scalia’s opinions so it looks like he’s deciding cases on moral, not constitutional grounds. For example, discussing Sanford v. Kentucky, where Scalia wrote a majority opinion declaring that it is permissible to execute 16 year old defendants, Strand has Scalia defend himself against Cat’s charges of cruelty by noting that “the victim was somebody’s daughter … That’s how I got past cruel.” But the real Scalia in Sanford v. Kentucky noted, in footnote 2, that it was relevant to count the number of states banning the executions of juveniles in discerning whether or not a national consensus against the practice existed. Far from “getting past cruel” because the victim was somebody’s daughter, Scalia could discern no national consensus because only fifteen states at the time banned juvenile executions.

There are plenty of other exaggerations in the play—including an apparently made-up scene where Scalia calls himself a “common whore” for lobbying to become chief justice and denounces Bush for not appointing him as payback for Bush v. Gore. But to my mind, the greatest missed opportunity was the failure to acknowledge that Scalia deserves respect for having transformed the constitutional debate so dramatically that even liberals acknowledge his influence. “His views on textualism and originalism, his views on the role of judges in our society, on the 
practice of judging, have really transformed the terms of legal debate in this country,” Elena Kagan said in 2007 when she was Dean of Harvard Law School. “[Scalia] is the justice who has had the most important impact over the years on how we think and talk about the law.” You can’t get a sense of that influence from The Originalist, or of the best arguments against originalism either.

Epps: The lifeblood of entertainment is drama—real conflict between souls, not words describing ideas. Law has many moments of drama, but not many of them involve the judge as the star, and even fewer take place in appellate chambers. Wonderful places they may be, gymnasiums of the mind, but to the playgoer’s eye usually as dramatic as Sunday dinner in a Trappist monastery.

Of course there has been high drama at the Supreme Court, and, in the abstract, who would make a better protagonist than Antonin Scalia?  He is an opera lover, as we know—and beyond that his personality and style are operatic, given to great swooping glissandos of outrage. However, playwright John Strand has not written opera but musical comedy.  The Originalist is a remake of My Fair Lady—a powerful older man, restless and incomplete because of his embrace of purely masculine values, is drawn to a powerless young woman; he undertakes to raise her to his level only to find that she completes his sentimental education.  At the story’s end, both characters realize they were not complete until they met the other.

It’s hard for questions of judicial philosophy to share the stage with romantic comedy, with Tracy-and-Hepburn banter, and with a Scalia as magnetic as Gero, or a protégé as fiery and attractive as Kerry Warren as Cat.  But the play is called The Originalist, not My Fair Law Clerk.  It purports to be about a philosophy of judging. Does this work tell us anything new about that?

I think the picture of Scalia presented is smaller than life. To begin with, it is prettied up, denying the man’s full operatic complexity; and secondly, it is misplaced in time, centered around an episode late in his career that doesn’t display his strengths as fully as the playwright seems to imagine.

The Scalia of The Originalist is a gruff but kindly man.  He would be a great co-worker—frank, funny, and challenging. I have no doubt that the real Justice Scalia has those qualities: We see them in the enduring friendships he has built with colleagues over the years, including some, like Ruth Bader Ginsburg and Elena Kagan, who differ with him sharply on many legal points.

But even most of his admirers must admit that Scalia’s judicial persona has what C.G. Jung would have called a “shadow”—an ever-present area of darkness, negativity, rage, and solitude.  It is hard to remember now, but when he was confirmed to the bench in 1986, he was expected to be the conservative answer to William Brennan. His force of personality and impish charm would make him a playmaker, one who would draw his colleagues smoothly to the right. But it wasn’t to be; he arrived on the bench as an enfant terrible, oozing scorn for the entire corpus of case law that preceded his advent—scorn that at times shaded over into contempt for his colleagues and the Court itself.

He clearly relished dissenting more than writing majority opinions—lecturing the Court and his colleagues on how far they had fallen short of his high standards. Margaret Talbot once wrote in The New Yorker that a Scalia opinion was “the jurisprudential equivalent of smashing a guitar onstage.”  His language in these separate opinions was often harsh, verging on offensive. When a major vote went against him, it was never portrayed as a collegial difference of opinion—it was usually, in his retelling, an act of usurpation.

Every great figure has a shadow. The playwright, however, seems determined not to look at Scalia’s—and to my mind that’s the only possible explanation for the truly regrettable figure of Brad (Harlan Work), the envious, deceitful, violent, sycophantic Gollum to Cat’s Frodo. As an actual portrayal of a young lawyer, he’s painful to watch. But he embodies the fearsome side of a character who actually calls himself a monster (as the onstage Scalia does, not the real one)—a fearsome side the script does not acknowledge.

My second criticism has to do with history and time. The central episode of The Originalist is Scalia’s dissent in United States v. Windsor; in the story, this moment is a triumph, in which he manages to stay true to his principles while embracing the fuller humanity his mentorship with Cat has helped him realize. But let’s not kid ourselves:  nothing about that dissent was triumphant. The Windsor dissent episode, in fact, could be staged as the moment in a Greek tragedy in which the protagonist’s tragic flaw undoes him. Scalia—the real Justice—was unable to restrain himself, to bite his tongue; he proclaimed the struggle over same-sex marriage over and explained exactly why the majority’s opinion had to be read that way.  He ended up handing powerful rhetorical tools to the lower-court judges who have now found a right to same-sex marriage in the Constitution. This is an irony worthy of the Greeks; and underlying it is the melancholy fact that we are seeing the Justice late in his career. He was and remains, in influence, a giant; but the beanstalk beneath him is bending toward the earth.

Rosen: I love your comparison of The Originalist to My Fair Lady, although Damn Yankees is another a musical analogue. Like Cat, the protagonist there is a Faust character who sells his soul to the Devil in order to win the pennant, only to question the deal after he’s been transformed into a monster. (That would make Brad, the conservative clerk, a version of the Gwen Verdon temptress whom the Devil/Scalia sends to keep Cat on the dark side; the Faust/Cat character breaks the deal by following his heart).

But in fact, the closest dramatic analogue to The Originalist isn’t one of the musicals from the Golden Age, it’s two justly forgotten prime-time TV soaps about the Supreme Court from 2002: First Monday on CBS and The Court on ABC. Both shows, which only lasted a few episodes, had identical plots. The protagonists, played by Joe Mantegna in First Monday and Sally Field in The Court, were earnest swing justices who resolved to keep an open mind in a polarized age. Both were surrounded by two sexy law clerks—one liberal and one conservative—who would theatrically argue in front of the TV justice about the moral issues at stake in the cases at hand. And in both shows, although the justices were tempted to do the morally wrong thing, a tidy domestic drama that neatly mirrored the case persuaded them to cast a tie-breaking vote for the cause of justice.

You say, “The lifeblood of entertainment is drama—real conflict between souls, not words describing ideas.” But in the process of reducing law to entertainment, these Supreme Court soaps—like The Originalist—lack any sense that there might be a distinction between law and politics, between the personal and the political. That’s why I was disappointed that John Strand paraphrased Scalia’s opinions out of context, to suggest that he was ruling on the basis of his moral views, not his constitutional views. The entire premise of originalism—Scalia’s distinctive and salutary contribution to constitutional debate—has to been to suggest the opposite: namely, that it’s important for judges to distinguish between their moral views and their constitutional views.

Of course, there are critics of originalism who suggest that Scalia sometimes betrays his constitutional principles by ignoring text and history when they clash with his moral views. But those critics can’t be found in The Originalist. I was disappointed, as I said, that Strand constructs his entire play around a debate between a parody of liberal judicial activism, represented by William O. Douglas, and a parody of conservative judicial activism, represented by Scalia. There are no liberal activists in the mode of William O. Douglas on the current Supreme Court; all of the liberals care enough about constitutional text and history to engage Scalia on his own terms. And outside the Court, there is, in fact, a vibrant debate between conservative originalists and liberal “new textualists,” represented in the academy by scholars such as Akhil Amar and by think tanks like the Constitutional Accountability Center. The liberal new textualists give Scalia credit for cases in which his constitutional and political views diverge—cases involving flag burning and DNA searches, for example. But they argue that Scalia sometimes ignores constitutional text and history in cases involving corporate personhood, for example, or voting rights.

Cat is not a new textualist; she is a sentimentalist. I sympathized with her frustration in the play that the center is imperiled in these polarized times and there are few platforms for civil constitutional debate. (The National Constitution Center is one of them). Her solution is to work for someone she considers a “monster” and try to change his views, or get him to acknowledge her fellow liberals’ good faith. But there are other options.

You suggest in your post that the clash of ideas can’t be made dramatically compelling. But to me there’s nothing more compelling than the clash of ideas about the Constitution. And in the theater, other producers are working creatively to bring this clash of ideas to the stage with integrity—such as John Collins, director of Elevator Repair Service, who so brilliantly staged the oral arguments in the Barnes v. Glen Theater nude dancing case from 1991 as the play Arguendo. In that show, the actors read every word of the oral argument transcript, accompanied to wild staging that culminated in a nude dance. The show combined amusement with instruction, to use the Victorian formulation. Collins has faith in the intelligence of citizens, and their ability to follow and engage complicated legal arguments when they’re presented in a dramatically compelling form. It’s too bad that John Strand lacked that confidence, and, for the sake of entertainment, transformed the most intellectually influential justice on the Supreme Court into a soap-opera caricature.

Epps: As a novelist and closet screenwriter, I would never say what you think I said—that “the clash of ideas can’t be made dramatically compelling.” It can and often is—but not by having actors, however lively and skilled, debate on stage. Onstage debate, no matter how cogent, is not drama—even when the characters interrupt their speeches to fire assault rifles.  Drama may embody ideas, but it’s still drama: significant action that reveals character and transforms the imagined world. Oedipus’s self-blinding, Hamlet’s refusal to kill Claudius at prayer, Nora’s exit in A Doll’s House, Michael Corleone’s confrontation with Captain McCluskey—those are drama.  In all of those moments, ideas are present but words are secondary.

A real look at originalism would lend itself particularly well to drama. Here is a central national mystery: why do we remain so fascinated by the secret thoughts and wishes of our dead Founders? “We have had founded for us the most positive of lands,” Walt Whitman wrote in 1871. “The founders have pass'd to other spheres—but what are these terrible duties they have left us?” More than two centuries after the Founding, we remain oppressed by our “terrible duties” to the dead. The Founders are our pride, but they are also our torment. In crisis they are silent (dead, you know), but in moments of reflection we can vividly imagine their scorn. Oddly enough, the more we learn about their flaws, the more desperately we yearn for their approval. It is a national ghost story. What could lend itself more powerfully to drama?

In our time, Antonin Scalia is the most influential prophet of the honored dead. Imagine that Scalia onstage in conflict with a character or characters who could test his claims.  As you note, Cat opposes Scalia not with historical evidence—or even with questions about the originalist method at all—but with feeling, with a sense that Scalia’s jurisprudence violates the spirit of America. And when Scalia responds, it is not to defend his conclusions from the past, but instead to vindicate his essential humanity. We are left to assess which set of feelings is more moral, more authentic, more American.

To me, the great question of Scalia’s career is this: When he proclaims himself an originalist, is there really any there there?  When, if at all, has Scalia’s originalism led him to embrace a legal conclusion at odds with his ideology and emotional predisposition? When, if at all, has he even struggled with contrary evidence or pondered the idea that the “original meaning” of the Constitution may simply be lost in time?  I’m not prejudging: If such a time could be found—or even a time when he visibly struggled between his philosophy and his heart—that would be a superb dramatic moment. And there would be drama, too, in the clash of a Scalian originalist reading with an equally powerful opposing view that also claimed to be faithful to the Founders’ vision.  Consider District of Columbia v. Heller. In his majority opinion, Scalia announces that his view of private gun ownership faithfully reflects that of the Founding generation; Justice Stevens hears a different set of ancestral voices. Are Scalia’s conclusions about the “original public meaning” of the Second Amendment truly anything except the emotional preference of a man who grew up loving guns in a city that was uncomfortable with them?  What makes them better than Stevens’s?  No matter which answer a playwright produced, it would be a riveting process.

The actual opposition in The Originalist is the classic antithesis often perceived by outsiders to the law: The law is about reason and logic, while life must be lived in terms of feeling and desire. But that’s a false dichotomy. As Oliver Wendell Holmes Jr. said, “The life of the law has not been logic; it has been experience.” Experience simultaneously reshapes both feeling and thought. Scalia’s jurisprudence contains powerful ideas on subjects like judicial review, democratic theory, sex roles, gay rights, race relations, and firearms; but who would deny that every sentence he writes also betrays powerful emotions—pride, resentment, anguish, alarm—as well?