I Shouldn’t Judge a Play About Antonin Scalia Until I See It, Right?

What if I think he was a terrible jurist and a bad man? Does that make me a bad critic?

I'm not a fan.

Let me start with the premise that ethics still mean something in America. You may wish to sit for the rest of this read, or else, if you can manage not to collapse, please stay with me.

I’ve been writing about the theater, including a great deal of theater criticism, for nearly 30 years. For the last seven-plus years I haven’t written much criticism, admittedly, preferring more Q-and-A-style stories, but there’s a long paper trail of reviews behind me. I also feel that a critic is a critic, whether or not s/he actively writes criticism — and, in any event, that a critical mind is never without its benefits and uses. I’m additionally open about the fact that I never went to J school; my training was acquired by doing, molded by mentors, and finally advanced through happenstance and circumstance.

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Yet certain things still strike me as very easy to grasp, even without a master’s degree in journalism. A critic — in my case, a theater critic — mustn’t prejudge a play or production until s/he sees it. It seems so basic, right? Only idiots and right-wing Republicans prejudge a work of art before they see it, which we know they do. When a Republican says “I’m going in with an open mind” about anything — a vote for a Supreme Court justice, say — they’re liars. Because that’s what they do.

Playwright John Strand’s The Originalist, about the late, not-so-great Justice Antonin Scalia, is coming to 59E59 Theaters here in NYC. It’s directed by Molly Smith, who has served as artistic director of the venerable Arena Stage in Washington, DC, for 20 years. Given that I run a website that produces and publishes opinion and reporting at the crossroads of arts and politics, I know I certainly should see the play and, indeed, go in with an open mind. But oh, that name — Scalia. Try, I caution myself, not to choke on indignation, on revulsion. Try to imagine him a son, a husband, a father, a man. Try. But try as I may and try as I might, I find I really don’t want to give Scalia, or any play about him, the time of day, much less a fair and objective trial run. And yet. And yet. And yet.

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I really meant what I wrote — that idiots and right-wing Republicans think it’s OK to prejudge anything — an idea, a piece of legislation, a work of art — before they actually see it. Perhaps they’re not the only people to do this, but they sure do wear their prejudices with pride. As a critic, meanwhile, ethics dictate that I reject prejudice, that I struggle against it. Prejudging is antithetical to the whole point of criticism, of practicing journalism. For if it can be acceptable to prejudge, then why not believe that the world is flat, or that the subservient sun and silly planets spin around the Earth, or that some God, some Supreme Being, created our ravaged and endangered little planet 6,000 years ago? The fact that more than a few of our fellow Americans fancy themselves to be intellectually honest even as they prejudge this, that and something else, is more than folly. It’s the way of madness, of social suicide. But this is where we are. Sen. Mitch McConnell will not meet Merrick Garland. Members of Congress from this side of the aisle will not talk to — let alone bargain or compromise with — members from that side. Benedict Donald Trump Arnold, improbably installed in our White House as a proxy for the Russian premier, will meet the dictator of North Korea — as if that’s the kind of persuasive counter-example you really want to latch onto.

Photo by Peter A. Smith for the Boston Herald, 2006.

I asked the press rep for The Originalist, which begins performances Sat., July 14, opens Thurs., July 19, and runs until Sun., Aug. 19, for a copy of the script, which she provided. I’ve read it. And you know what? I still loathe Scalia. I think Scalia was a piece of work, a pain in the ass and a total asshole. To me, “Originalism” is lipstick on an 18th-century prig. An intellectually coy justification for proclaiming that a people and a nation must not evolve, or, if they do evolve, must not allow their evolution to be reflected in their founding document — in America’s case, our 230-year-old Constitution. Whereas we modernist heathens believe that a nation’s founding documents must be interpreted to be a reflection of who we are, of where we are, of the kind of people and nation we aspire to be. Not so, say the implacable Originalists. “If it wasn’t written by the Framers,” they aver, “it’s not Constitutional.” Well, I haven’t much doubt as to why Scalia had a fetish for Originalism — and for its intellectually wily cousin, textualism, which holds that the external contexts and historical sources behind a law are invalid for the purpose of applying it; the ordinary meanings of ordinary words only, please. Scalia was raised a strict Roman Catholic, lived as a strict Roman Catholic and carried his strict Roman Catholicism to his unabashedly cruel and unusual jurisprudence. Not that my faith, Judaism, or many other faiths are renowned for being careless and cavalier about dogma, but wouldn’t you agree that Catholicism does it awfully well? What I would call an “interpretationist” approach to life — to rules of faith, to words of a constitution — therefore represents a direct, explicit threat to what I would call a “literalist” approach to life, and it’s through “literalism” that dogma derives its power. Passionate Catholic Scalia and Passionate Originalist Scalia occupy similar sides of the very same literalist coin. And to our hopelessly divided and increasingly uncivil nation, Scalia bequeathed 30 years of socially regressive, insulting, morally questionable rhetoric and rulings. Having read The Originalist, let me affirm that Strand lays all of this out with good craft. The playwright endows Scalia with the oomph and swagger for which his subject was famous and, by some, beloved. And I still couldn’t care less.

Oh, and there’s Scalia’s charm, too. Thicker than an Irish brogue as the seventh whiskey is whisked across the bar at 2am, it’s alarming how disarming he reads. Strand presents us with Scalia in winter and in relief — by devising an ardent, formidable foil in Cat, a “bright, liberal Harvard Law School graduate,” played by Tracy Ifeachor, who “embarks on a nerve-wracking clerkship” with Scalia, played by veteran actor Edward Gero. And there’s a story arc that I won’t disclose, but there’s suspense enough to make you wonder, if fleetingly, if there might be a reasonable man behind those reactionary robes. (Speaking of charm, if you attend the Sun., July 29 performance, you can enjoy a post-performance talk-back with director Smith and Justice Ruth Bader Ginsberg. I love Ginsberg, and heaven knows if there’s such a thing as immortality, may she be granted it, but I still don’t care to hear how divine he was when he wasn’t issuing argle-bargle rulings aimed at ruining people’s lives.)

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So now we reach the fork of this long (and long-winded) road. I think Scalia was a terrible jurist and I see no point in separating his jurisprudence from his character. After all, when exactly did Scalia ever say “hate the sin, love the sinner” and make you think he meant it? Consider his rabid homophobia, for example, and his comparison of homosexuality both to murder and to animal cruelty. Scalia was the original Archie Bunker; his favorite font was undoubtedly Dingbat. In his pissy dissent in Obergefell v. Hodges, which established a right to marriage equality, he wrote:

Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.

Why should I see a play about a man who, when it came to women making choices about their bodies, would rather they wedge a Tylenol between their legs or ask their local dry cleaner for a spare wire hanger? To show you, or Strand the playwright, or the actors, or the myth and memory of the man, what an ethical critic I am? Knowing what Scalia wrote and said and believed, why must I have to put it all in a box labeled “Objective” to prove — well, to prove what?

Screw Scalia. Screw a play about Scalia. I’m glad Scalia’s dead.

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So no, I’m not going to see The Originalist. It’s better that way because I know I can’t be objective. Nor will I try to dissuade you from going. Perhaps you’re objectively a better person — a more ethical audience member — than I am. Better suited to access and apply that thing I mourned so loudly at the start of this story: an open mind. And it’s not like very colorful jurists come along very often; no one’s producing Alito: The Musical! in The New York Musical Theatre Festival, sponsored by Cheerios. Maybe I’m just exhausted by life in a nation in which a minority of a minority regularly gets to impose its regressive will.

Is part of me ashamed to admit all this? You bet. Or, rather, I was ashamed. For then a tiny thought came to me as I wrote this dispiriting confessional from which no one may absolve me. If Strand wrote a play about Elizabeth Warren or Kamala Harris, how many right-wingers would go to see it — or, more to the point, would see it with an open mind? Consider the sad state of our disunited United States. What would make me suppose that the number of right-wingers that would see a play about Warren or Harris would be anything but zero? Why is it that only idiots and right-wing Republicans get to prejudge a work of art and get away with it? To prove a point — that liberals really can entertain and hold myriad viewpoints at once? I already know that. I already demonstrate that talent to the other side all the time. And I get why liberals still think we should go high even when the other side only knows how to go low. Well, I’m not doing any of it for Scalia. He hasn’t earned the right to access, even in death, my intellectual capital. All I want is to force-feed the right-wing a swig of their own closed-minded medicine. The sad part is they probably won’t even recognize the taste.