The business of judges is to understand and interpret statutes, and in order to do that they commonly try to uncover the intention of the legislature which passed that law. When your job, like Antonin Scalia’s, is to interpret the Constitution, you are divining the intentions of men (and they were all men) who wore breech cloths and stockings, and who have been dead for two hundred years and more.
That, at bottom, is the heart of the conflict which drives John Strand’s The Originalist, and also modern Constitutional debate: is the Constitution a precise and eternal structure, whose text, and the thinking of the men who made it up, provides the limits to government action and preserves the liberties of Americans? Or is it a looser and more flexible document, meant to be adjusted to serve the culture which seeks to apply it?
In the first camp are the originalists, led – in life and in this play – by the brilliant, iconoclastic, irascible Supreme Court Justice Antonin Scalia (Edward Gero), whose accomplishment and breadth of intellect is conceded even by his opponents. Scalia is a fierce conservative, and is also a marvelous personality, close friends with some of the Court’s most committed liberals; a good man to have with you in court, in the duck blind, or at the opera. He is also, as Strand’s text makes clear, uproariously funny, in a dry, wicked way. (His description of the second President Bush is almost worth the price of admission all by itself).
The second camp is represented by Cat (Kerry Warren), a passionate young liberal, also brilliant, a recent graduate of Harvard Law who seeks to become Scalia’s clerk so that she challenge his assumptions – and her own – through aggressive debate. This is the sort of challenge Scalia can’t resist. He hires her.
The lynchpin of The Originalist is United States v. Windsor, 570 U.S. _____ (2013), which invalidated that provision of the Defense of Marriage Act which defined marriage to be between a man and a woman. Windsor was a perfect case for a challenge to DOMA: Edie Windsor had married Thea Spyer in Ontario, and their home state of New York had recognized that marriage. However, when Spyer died and left her considerable estate to Windsor, the IRS did not recognize it, and sought to collect a huge tax bill which would otherwise be entitled to a spousal exemption.
There were a lot of legal reasons to rule for Windsor, the most obvious one being that the Courts had traditionally left the definition of marriage to the States, without Federal intervention. It is not entirely clear, however, which reason the Court relied on, and Strand makes the equal protection argument (similar to the one that struck down Virginia’s anti-miscegenation laws in Loving v. Virginia, 388 U.S. 1 (1967)) the center of the debate between Scalia and Cat.
The Constitution says not one word about homosexuality, Scalia thunders, and Cat replies with a litany of other things not mentioned in the Constitution – electronic eavesdropping, for example – which have found their ways into the Court’s opinion. Scalia is unmoved, though, and assigns Cat the duty of drafting the dissent he will lodge to what he comes to understand will be the majority’s opinion in favor of Edie Windsor.
Making a convincing argument for a position in which you do not believe is a lawyer’s stock in trade. Even lawyers who argue exclusively for a cause try to frame their opponent’s argument in the best possible way, so as to better understand the position they are trying to defeat. But it is also an exercise in civility, and civil discourse: to imagine that your opponent is not a cretin, or a cartoon character – a “monster” as both Cat and Scalia put it – but a reasonable human being, whose view of life is different than your own.
Do you feel the absence of civil discourse in our public life? You’re not alone. When Cat comes to visit her father she complains about the numerous tweets and Facebook messages she has received, blasting her for having the temerity to work for a conservative judge.
If it hasn’t been apparent to you by this point, this is a play about ideas. Scalia has no scandal, no moment of crushing defeat or embarrassment which Strand can turn into a story arc. The playwright gins up such heat as he can, having Scalia wax bitter about being passed over for Chief when Justice Rehnquist died in 2005. (I doubt Scalia ever entertained such thoughts; he was sixty-nine, and it was obvious that Bush intended to appoint someone who could serve for thirty years or more.) More convincingly, he gives us several tender moments between Cat and her dad, whose faith in her she identifies as the most powerful force in her life.
But the play is mostly about two contrasting views on how we should govern ourselves, and mesh the rights of society together with the rights of the individual. Exposition is done artlessly; Scalia will frequently say “I know that” when Cat gives him background that he knows, but we do not. Strand spends some time on the details of the law but his real subject is details of the heart; the problem with Scalia, Cat posits, is not with his scholarship but with his lack of compassion. The Constitution, she surmises, is a shield behind which Scalia hides, so that he need not expose his heart to human conflict. She later has cause to reconsider that position.
The conflict between Cat and Scalia – and there’s plenty of it – is salted with mischief and joy, and so to have a real villain Strand introduces Brad (Harlan Work) a smarmy fellow-clerk, former head of the Harvard Law School’s Young Republicans who sneers at Cat as a “socialist.”
Scalia puts Cat and Brad together to work on his dissent, and when Cat devises several arguments to bolster Scalia’s position, Brad mistakes Cat’s professionalism for a conversion moment. He regales her with stories of how much money she could make as a mixed-race female conservative, and the moment seems for all the world like the passage in Matthew 4:9 where Satan offers Jesus the whole world if He will worship Satan.
If legal and political discourse, tightly drawn and mouthwateringly funny, is not your cup of tea you might go anyway to see some of the best acting in Washington. I’ve said this before: Edward Gero is a continuing wonder. He has gotten all of Scalia – the stiff-legged walk (the justice is seventy-nine now), the sometimes overprecise articulation, done for effect; the way his mouth occasionally wanders over to one side of his face. His Scalia – just like Scalia’s Scalia – radiates self-confidence; when he talks freely about his spiritual journey, and prays unselfconsciously at Church to the strains of Mozart’s C-minor Mass, we can see, both through text and acting, that Scalia’s humility before God is a crucial part of his assurance before humans.
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To play Scalia, Gero studied him at Court and spoke with him. Warren had to get Cat from the text and from experiences of people like Cat. Perhaps she prepared by doing some tightrope walking, as Cat has to know just how much to challenge her powerful and explosive boss, who could fire (and ruin) her at any time, knowing that her challenge is also pleasing, even delighting, him. She enters a morally complex universe, inhabited by all good lawyers (and open to all of us) in which her own personal success is tied to dealing appropriately with someone whose beliefs are totally at odds with her without losing the relationship or her own soul. Warren engages the audience immediately as Cat takes on her immense task, and she never lets us go.
And Arena and director Molly Smith have given this fine work a good, rigorous production. I am not in love with the decision to use a thrust stage at Kogod – some of the detail work is invisible to one portion of the audience or another – but Misha Kachman has done his usual fine work with a mobile and flexible stage which allows Smith to effectively invoke the play’s many venues – Scalia’s office, a shooting range, a Cathedral, and so on. Colin K. Bills’ lighting design is particularly effective, capturing, for example, the effect of light falling on Scalia’s face from a window. All in all, this represents some of the best work I’ve seen at Arena for a while.
At the end of one of her passionate arguments with Scalia, Cat spits out “the next generation will write your epitaph.” Strand is, perhaps, referring more to himself than he is to Cat at this point. If so, it will not be a bad one for Scalia to have.
The Originalist by John Strand . Directed by Molly Smith assisted by Yukino Kondo .Featuring Edward Gero, Kerry Warren, and Harlan Work. Set design: Misha Kachman . Costume design: Joseph Salasovich . Lighting design: Colin K. Bills assisted by Brandon Rosen. Original music: Eric Shimelonis . Stage Manager: Susan R. White . Produced by Arena Stage at the Mead Center for American Theater . Reviewed by Tim Treanor.
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