Alito's Way

The news media treated Justice Samuel Alito’s recent speech to the Federalist Society in an all too predictable manner—as just another cannon blast in the culture war. But Alito’s remarks were far richer and more complex, indicating the future direction of the Court that the confirmation of Amy Coney Barrett has remade. They show that Chief Justice Roberts is no longer the Court’s pivotal player, that there will be a renewed focus on treating different constitutional rights in a more neutral and equal manner, that originalism will be the parole of the Court going forward, and that Alito is staking out a position in the coming debate about the nature of originalism: He will be the originalist of tradition.

Chief Justice Roberts

The Chief was a target of this speech. At the center of the talk was Alito’s complaint about a case in which he strongly dissented—one in which the Court upheld Nevada’s Covid restrictions on churches despite the state’s more relaxed restrictions on casinos, its major industry. Roberts provided the majority’s swing vote.

But Alito also complained that the Court has not decided on the merits any Second Amendment issues since Heller and McDonald, decisions rendered about a decade ago. The reason here again is Roberts. Three justices (Thomas, Gorsuch, and Kavanaugh) in addition to Alito have put concerns on record about the treatment of the Second Amendment by lower courts. But the four did not vote for certiorari and put more such cases on the docket when they had the recent opportunity. The likeliest reason is that they are uncertain of Roberts’ position. Much of this uncertainty comes from the interest that Roberts appears to have in distributing victories to maintain the diffuse political support for the Court.

But both these areas of law are almost certain to change with Barrett’s ascension. As a circuit court judge, she voted for a more expansive reading of the Second Amendment than might be suggested by an uncritical reading of Heller’s dicta. She is widely thought to be particularly sensitive to claims of religious liberty. With her substitution for Ruth Bader Ginsburg, Roberts still controls the mechanics of the Court, but he no longer has the power he enjoyed when he was both the Chief, with the authority to assign opinions, and the median justice, with the ability to swing the Court his way in most important cases.

Equal Treatment of Rights

Another theme of Alito’s speech is the need to treat rights equally. Alito expressly raises the concern that religious liberty is getting second-class treatment. “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”

His point about the Second Amendment is similar. How can the Court’s failure to supervise the lower courts in the explication of this right be sound when it has taken on so many cases to determine the content of other rights?

What exactly it means for Amendments to get equal treatment ultimately depends on their respective meanings. But Alito is correct that rights need to be treated neutrally in the sense that judges should not have favorite rights any more than they should have favorite children. It seems unlikely, for instance, that justices would have upheld restrictions on newsrooms that were more severe than casinos if the government had imposed them. Sadly, there is a real danger that the Second Amendment will be treated less favorably than the First, because judges make their living by their opinions and are members of a class that benefits directly from the freedom of exchange of opinion.

Alito is announcing that he will be the opposite of an “abstract” originalist: an originalist who will instead read the original meaning of the Constitution informed by the traditions that gave rise to its provisions.

Alito’s concern about neutrality extends to treating rights equally in different kinds of crises. It is a trope of constitutionalism that the Court should be vigilant to protect rights—like those of search and seizure, for instance—even amidst concerns about national security. Alito’s remarks constitute a plea to apply that same kind of vigilance—especially concerning religious freedom—amidst a pandemic.

The Rise of Originalism

Alito also clearly acknowledges that originalism will now be the parole of the Court. “A lot of the debate about constitutional and statutory interpretation,” he remarked, “now takes place within the framework of or at least using the language of” originalism and textualism. Alito sees originalism and textualism as similar at their core: both seek the original meaning of the Constitution and a statute respectively. This recognition is significant, because Alito has not been thought by many outside observers to be a convinced originalist, but instead a practitioner of the multiple “modalities” view of constitutional interpretation—a perspective that takes account of originalist meaning but also considers such matters as precedent and consequences.

I think that characterization of Alito may never have been completely accurate, because following precedent in some cases is consistent with originalism. In cases of first impression, Alito has been an originalist, and in others, he tried to move the law back toward the original meaning. But these current remarks suggest that going forward Alito will likely be more self-consciously originalist. And one of the reasons is that he wants to criticize some wrong-headed applications of these theories: He states “I will say that we have seen the emergence of what I believe are erroneous elaborations of Justice Scalia’s theories [of originalism and textualism], and I look forward to friendly and fruitful, full debate about where his thinking leads.”

One of his targets here is clearly Justice Neil Gorsuch’s opinion in Bostock, which he called in his dissenting opinion the equivalent of a “pirate ship that sails under a textualist flag.” The essence of Alito’s critique (with which I agree) is that Gorsuch’s reading was literalist, not textualist, failing to take into account the full context of the statute, including the use of terms in other laws at the time. Mike Rappaport and I have criticized such abstract readings of the Constitution. Nelson Lund has shown, in fact, that taken to its logical extreme this preference for abstraction makes originalism indistinguishable from living constitutionalism.

Alito the Traditionalist

The distrust of abstract readings without context reflects Alito’s concern for recognizing the importance of tradition in law. Without the proper context of their time and place, and the legal rules by which they were interpreted, legal provisions can wrongly be read as abstract principles, and judges can then use those principles to transform society without the advantage of the slower process of democratic deliberation. Alito is announcing that he will be the opposite of an abstract originalist: an originalist who will instead read the original meaning of the Constitution informed by the traditions that gave rise to its provisions. It is relevant here that Alito has been a keynote speaker for the “Tradition Project,” a group of legal scholars who emphasize the relevance of tradition to modern legal practice.

In keeping with his emphasis on the importance of tradition, Alito ends with Learned Hand’s famous quote: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

The Constitution and our legal regime depend essentially on the traditions that surround it. That is the reason that Alito calls out the Democratic senators who threatened to “restructure” the Court if it decided a Second Amendment case in a wrong way. The Court’s work will be undermined if this practice becomes a new norm. Similarly, regardless of whether court-packing is unconstitutional as a matter of positive law, it would overturn the national traditions that make the Court a fully independent branch that provides a balance wheel for our constitutional system.

The new Roberts Court will present the greatest opportunity for rethinking judicial methods in decades. In this speech, Alito is staking out his bid for leadership. His implicit message is that his approach best captures an understanding of originalism that reflects the traditional legal practices and the political norms in which it is embedded.