The writer of a new play about U.S. Supreme Court justice Antonin Scalia that’s now running at Arena Stage in Washington recently said he “never set out to mock Scalia or do a hatchet job on him.” Slate’s Mark Joseph Stern suggested in a Friday review that maybe some mockery, and certainly a lot more realism, would have made John Strand’s The Originalist far more compelling than the “fan fiction” it turned out to be.
A crucial shortcoming of Strand’s play, Stern argued, is its out-of-date portrayal of Scalia as “a principled conservative, a brilliant and complex man who resists partisan classification.” Nowadays, however, Scalia’s “ideology…looks less conservative than Republican…Twenty years ago Scalia was the unpredictable justice, the renegade who thought both flag burning and corporate campaign contributions deserved free-speech protections. Today he looks a lot more like the Fox News justice, ruling however the Obama administration wishes he wouldn’t.”
Stern also didn’t buy that the “hard-line anti-gay” Scalia would knowingly hire a lesbian to clerk for him: “Would the same justice who unapologetically compared gay Americans to drug dealers, prostitutes, and animal abusers really be so tolerant in his personal life? Of course not. The Originalist wants us to imagine Scalia as a lovable contrarian and a warmhearted grump whose judicial opinions often lie worlds away from his real-life habits. There is simply no evidence that this portrayal is accurate.”
From Stern’s article (bolding added):
In the opening scene of The Originalist…[Scalia] jokes that half the country lauds him as a hero while the other half vilifies him as a monster. It is a quip repeated periodically throughout the play, and each time is greeted by a knowing chuckle. We, the audience is meant to think, would never view Scalia so simplistically; we understand that the justice is really a principled conservative, a brilliant and complex man who resists partisan classification.
If you share that vision of Scalia, you will find The Originalist deeply enjoyable. If you think the justice is actually a sanctimonious, bigoted bully, you will find The Originalist grating, lionizing, and gallingly condescending.
Scalia undoubtedly has certain legal convictions that are genuinely held and not influenced by politics—and which he follows even when they lead him to an outwardly liberal conclusion. But in recent years, Scalia’s contrarian streak has noticeably faded. In its stead, an ideology has emerged that looks less conservative than Republican, in the most political sense of the word. Twenty years ago Scalia was the unpredictable justice, the renegade who thought both flag burning and corporate campaign contributions deserved free-speech protections. Today he looks a lot more like the Fox News justice, ruling however the Obama administration wishes he wouldn’t…
…The Originalist sets up a rather contrived premise: Scalia has hired a flaming liberal as his law clerk, a lesbian of color who supports abortion rights, gay marriage, gun control…
…What’s really bizarre about this whole arc is that the play envisions Scalia knowing about [the clerk’s] orientation when he hires her, then calmly accepting her when she reveals it to him…
Would the same justice who unapologetically compared gay Americans to drug dealers, prostitutes, and animal abusers really be so tolerant in his personal life? Of course not. The Originalist wants us to imagine Scalia as a lovable contrarian and a warmhearted grump whose judicial opinions often lie worlds away from his real-life habits. There is simply no evidence that this portrayal is accurate. Quite the contrary: In speeches, interviews, and opinions alike, Scalia has consistently maintained a hard-line anti-gay stance…
So it is with the rest of the play, which asks us to buy into Scalia’s own carefully crafted image as scrupulous originalist…
None of these problems detracts from the entertainment value of the play, which is always engaging and often very funny...
…The Originalist extols Scalia’s ostensible grandeur so breathlessly that, by the finale, it careens toward pure fantasy. This isn’t just historical fiction; it’s fan fiction, determined to recast Scalia as an unprejudiced legal giant. Don’t believe a word of it.
