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The sturdy, compelling production of John Strand’s The Originalist now Off-Broadway at 59E59 Theaters rivets our attention with ultra-contemporary panache. The play explicates both the character and the philosophy of that most polarizing of jurists, the late U.S. Supreme Court Associate Justice Antonin Scalia (Edward Gero), whose doctrine of constitutional originalism, or strict constructionism, remains a strong current in our bitter national debate.
Directed smoothly by Molly Smith, who helmed the original production at Arena Stage, the play delves with grace and intelligence into the idea that the U.S. Constitution is a sacred text to be understood only and precisely as its drafters understood it in the 1780s, not a “living document” to be continually reinterpreted according to the mores of the times. Some of the earlier dialogue gets a tiny bit dry, perhaps necessarily so given the matters under discussion, and some of the sequences around the climax are a touch stagey. But the play retains dramatic solidity and remains engaging throughout.
The real Scalia enjoyed battling his philosophical opponents, typically hiring one liberal young lawyer among each batch of four law clerks. For his play, Strand invented Cat (the assured Tracy Ifeachor), an accomplished and ultraliberal black Harvard Law School graduate. As Scalia’s foil she touches off a clash of philosophies, even as the story also gradually reveals the combatants’ characters.
The drama culminates with the drafting – primarily by Cat – of Scalia’s dissenting opinion in the landmark United States v. Windsor case in 2012. A five-to-four majority swept away the Defense of Marriage Act and legalized same-sex marriage in a case with powerful religious ramifications. Indeed the play suggests that Scalia’s constitutional originalism had a religious basis, or at least a strong religious corollary. Ironically, though, “Nino” and Cat’s shared Catholicism is one factor that binds them; they form a caring personal relationship in spite of their diametrically opposed views.
In my layperson’s view, the play does not present a logical foundation for originalism. Strand’s Scalia, played with gravitas and sensitivity by Gero, talks of “faith” but offers no sensible justification for resting 21st-century decision-making on 18th-century realities. Believing blindly in the words of a religious text like the Bible is a matter of personal conviction; hewing strictly to the wording of a legal document whose crafters could imagine neither modern technology (e.g. automatic weapons) nor certain enlightened thinking on social matters (e.g. same-sex marriage) is another, and this version of Scalia can back it up only with an unwarranted sort of “faith.” Strand seems to have done his historical homework, so it’s hard not to conclude that this represents the real Scalia’s thinking.
In Gero’s magisterial portrayal the Justice is both grandiosely sure of himself and intimately human. He’s an egotistical bully who, despite Cat’s initial protestations to the contrary, does have a heart – though one governed by his own conception of absolute subservience to the law. He relishes doing battle, as he shows when he recreates his confrontation with Senator Ted Kennedy during his confirmation hearings. Yet he rues his legacy of having been so frequently in the dissenting minority, and regrets even more having been passed over when the post of Chief Justice became vacant, as he admits to Cat in his own rawest moment.
Cat laments the loss of “the middle,” the process of and respect for compromise, even as she readies herself to battle the “monsters” on the opposing side of our polarized society. Her own most telling moment is one of a different kind of vulnerability. When in a kind of bonding exercise Scalia takes her to a firing range to teach her to shoot a semiautomatic weapon, she jumps in childish joy when she finally hits the target. After instinctively celebrating the raw power she has begun to master, she realizes with a subtle and beautifully played jolt that, as Scalia later admits, “being a monster is half the fun.”
Ifeachor portrays Cat as every bit the Harvard Law star depicted on her resume, defiant in the face of Scalia’s cruel but crafty disparaging of her skills. In her steely professionalism, how different is she, deep down, from her Young Republican classmate Brad (Brett Mack), whom Scalia brings in to help with the Windsor case? Fundamentally, is Cat a thoroughly different animal than the archconservative Justice himself?
Ah, but she is. And I think one of Strand’s intentions was to make that point, even as he endeavored successfully to humanize Scalia. The Originalist runs through August 19 at 59E59 Theaters. Visit the website or call 212-279-4200 for tickets.
