Justice Samuel Alito’s new book has exposed a contradiction in his judicial philosophy: Alito calls himself an originalist, but even some conservative reviewers see that his decisions are driven more by politics than principles.
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On Tuesday, Vox’s Ian Millhiser wrote that the backlash against Alito’s book is a bombshell for the right, which now appears to realize that the U.S. Supreme Court justice has been less than candid when it comes to his originalism arguments.
Alito’s book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, is largely a collection of his previously delivered speeches. But reviews by Harvard law professor Jack Goldsmith, The Washington Post’s Jason Willick and libertarian writer Damon Root found the book puzzling given the title and the justice’s deviation from practice.
Originalism is the idea that cases should follow the strict interpretation of the Constitution and words must be based off of their original public meaning at the time the case was presented or laws were written. Conservatives have used it to justify preventing judges from substituting personal preferences for the law. But the conservatives who reviewed Alito’s book argue that the justice frequently appears to choose his political beliefs first and then find a justification in originalism after the fact.
Root looked at Alito’s comments on the gun rights case McDonald v. Chicago (2010). He explained that the court faced two questions: first, whether the Second Amendment applied against state and local governments as it does against the federal government. Second, if the court finds that it applies against the states, how should it be applied?
“The historical evidence in the case all pointed in the same direction: The most thoroughly and consistently originalist way of applying the Second Amendment against the states was via the Privileges or Immunities Clause of the 14th Amendment,” wrote Root for Reason.
Yet, Alito rejected that originalist argument. Evidently, he still rejects it.
“To make his current case, Alito has enlisted the aid of the late Justice Antonin Scalia, who vocally opposed the Privileges or Immunities Clause argument during the McDonald proceedings. ‘Why did Scalia, a former law professor, say that?’ Alito wrote in the Journal. ‘Because accepting the Privileges or Immunities argument would have opened a can of worms. Libertarians, social conservatives, progressives, socialists and others could all make a pitch for whatever rights they favored,'” Root quoted.
To be fair, Root explained, any judicial decision can open a can of worms. “If the Constitution demands that the government stop acting in a certain way, why should a self-professed originalist put his fears about opening a can of worms ahead of his judicial duty to follow the constitutional text where it leads?” asked Root.
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As Millhiser notes, Alito argues that originalism must produce “good results” to remain influential. Willick asked the obvious question in his review: good according to whom? The concern is that Alito’s standard essentially allows his political preferences to determine when originalism deserves to be followed and when he can ignore it.
Another case that Millhiser cited was one over the Consumer Financial Protection Bureau funding. Alito went off on a historic rant about historical conflicts between Parliament and the English monarchy. Justice Clarence Thomas criticized it for Alito talking a good game about history, but not directly connecting it to the U.S. Constitution.
As Millhiser explains it, this is Alito’s example of historical storytelling twisted to claim originalist analysis.
Then there’s the matter of how Alito justifies opposing something during President Barack Obama’s administration but supporting it during President Donald Trump’s administration. In fact, as Goldsmith explained in his analysis, Alito has supported the Trump administration in every important second-term case, including dissenting in its major defeats. For Obama, it was not similar.
As Millhiser notes, originalism gives justices a rationale for overturning precedents by claiming earlier decisions somehow misunderstood the Constitution’s original meaning. But that makes the method politically useful without guaranteeing consistent application.
It prompted him to wonder if Republicans may ultimately abandon originalism entirely so that they can more explicitly adopt more ideological judging or personal loyalty to Trump.
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