Edward Gero Stars as Antonin Scalia in THE ORIGINALIST

L-R: Edward Gero Stars as Antonin Scalia in THE ORIGINALIST.  Photo by Joan Marcus.

Antonin Scalia was the son of an Italian immigrant father and first generation Italian-American mother; a devout Roman Catholic; the father of nine children; an opera-lover; and a law professor who taught at the University of Virginia, the University of Chicago, and Stamford University.  But he is best remembered as one of the most brilliant, influential, principled, conservative and controversial Supreme Court justices in recent history.

Scalia was appointed to the Supreme Court by President Ronald Reagan and unanimously confirmed by the Senate (98-0) in 1986, serving on the Court with great distinction until his untimely death 28 years later.  One of the most conservative members of the Court, he vigorously opposed treating the Constitution as a “living document” whose provisions could be re-interpreted by the judiciary over time to reflect changing times.  Rather, he saw the Constitution as a document fixed in its meaning whose words were no more subject to re-interpretation than were the notes of a musical score (which remained for all time as they were first written).  Thus, he described himself as an “originalist,” by which he meant that he sought to interpret the Constitution as he believed it had been understood when it was first adopted.  As he expressed it: “it’s what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution.”

It was this approach that led Scalia inexorably to his conclusions that the death penalty (clearly recognized in the original Constitution) was constitutionally permissible but that the Constitution did not recognize any inherent rights to abortion or same-sex marriage (which were not even referenced in the Constitution).  It was not that he necessarily believed that the death penalty was a desirable punishment nor that he thought that abortion or same-sex marriage were undesirable (although he very well might have), but rather that he felt that it was not up to the judiciary but to the legislature to make such decisions.  In his opinion, if the people wanted to ban capital punishment or legalize abortion or same-sex marriage, that was their right – but they had to do it through legislation, not through judicial activism.

It was also this approach that led Scalia to uphold an individual’s Second Amendment right to own a firearm, determining that the term “militia” as used in that amendment would have been understood, at the time of the amendment’s ratification to have meant “the body of all citizens.”  It was this approach, too, that led Scalia to oppose “reverse racist” affirmative action programs or policies that accorded special status to favored classes on the grounds that such programs or policies were clearly unconstitutional (being inconsistent with the Constitution’s guarantee of equal protection of the law).  And it was this principled approach that sometimes led Scalia to decisions that he, himself, said he “deplored,” such as his upholding the constitutionality of flag-burning as an exercise of free speech protected by the First Amendment.

The Originalist, written by John Strand and directed by Molly Smith, is a truly mesmerizing and thought-provoking play.  Set during the 2012-13 term of the US Supreme Court and focusing on the complex persona of Antonin Scalia (with all his strengths and weaknesses), the play premiered in Washington, DC in 2015, less than a year before Scalia’s untimely death.  It is currently being staged at 59E59 Theaters in midtown Manhattan at a most appropriate moment, with our nation as politically polarized as I can ever remember it being and with the Senate on the verge of debating the controversial nomination of Brett Kavanaugh to the Supreme Court to replace the retiring Justice Anthony Kennedy.

 

Edward Gero is truly remarkable in his channeling of Antonin Scalia – body and soul.  He does a fine job expounding Scalia’s judicial philosophy but, even more importantly, he communicates the man’s underlying sense of fairness and deeply-rooted humanity, as evidenced by the close relationship he shared with Ruth Bader Ginsburg, one of the Court’s most liberal members and in many ways his polar opposite – and by his decision to select a liberal to challenge him as one of his four law clerks.

Cat (Tracy Ifeachor) is the liberal law clerk Scalia chose for this term – and she may be more than even he bargained for.  She is a self-described socialist, a top-of-her-class Harvard Law School graduate, a black woman, and a lesbian to boot - and her values and beliefs, on everything from gay marriage to gun control to abortion - are diametrically opposed to Scalia’s.  And she is determined to influence Scalia as much as he might influence her, thereby helping to restore the political middle to our polarized society.

The Originalist is basically a two-hander, with Scalia and Cat sharing the stage as sparring partners.  Cat gives as good as she gets, a tribute to Tracy Ifeachor’s own considerable talents.

 

The only other character in the play is Brad (Brett Mack), a Republican, white male who had been Cat’s contemporary at Harvard.  His more limited role in the play seems to be to act as something of a foil to Cat and to re-raise the issue of affirmative action from another perspective   It is a role which he handles very effectively.