08:57, May 03 374 0 abajournal.com

2017-05-03 08:57:05
9th Circuit judges talk Justice Scalia after stage performance of ‘The Originalist’

As the stage play The Originalist opens, the audience finds Justice Antonin Scalia (Edward Gero) comparing opera—which the late justice famously loved—to his judicial philosophy.

“There’s a sanctity to the score. The notes are the notes,” he says. “That is precisely my view of the Constitution.”

Over the next 90 minutes, the audience gets to hear Scalia defend that view at length, with a young law clerk called Cat (Jade Wheeler) as his foil. Scalia hires Cat, a recent Harvard Law School graduate, despite her openly admitting that she’s a “flaming” liberal. At least among lawyers, it’s a recipe for robust debate.

At the April 15 matinee of The Originalist at the Pasadena Playhouse near Los Angeles, where the play is running from April 11 to May 7, there followed yet more debate and more lawyers—Judges Alex Kozinski, Stephen Reinhardt and Paul Watford of the San Francisco-based 9th U.S. Circuit Court of Appeals, who held a discussion and Q&A after the play. They were joined by playwright John Strand.

Kozinski, who had known Scalia personally, said the play captures some of the justice’s personality very well. Scalia was brilliant, affable and funny, he said, sometimes self-deprecating, and “really, absolutely sure that he was right.” And Kozinski believes Scalia changed American law—though perhaps not in the way he’d wanted—by legitimizing originalism.

“Before Justice Scalia became a justice, those kinds of arguments were largely laughed aside,” Kozinski said.

For Watford, the play was partially about clerkships—a view perhaps influenced by the fact that he once clerked for Kozinski. That experience taught him that clerks who challenge their judges, like Cat, can be valuable.

Reinhardt used his time to denounce originalism, though he was careful to say he didn’t intend to demean Scalia as a person.

“To say that ‘I have some communication with the original founders and I know what they meant’ is to me an unusual degree of arrogance,” he said.

The Originalist premiered at Washington, D.C.’s Arena Stage in 2015, prior to Scalia’s death. Strand said Scalia never saw the play, though Gero became friendly with Scalia while researching the role. And Justice Ruth Bader Ginsburg attended, Strand said—which led the audience to watch her rather than the play.

After finishing its run in Pasadena, The Originalist moves to Chicago’s Court Theatre May 10.