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.

Reader Discussion

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on December 03, 2020 at 08:28:19 am

Every aspect of this piece, reading it, was refreshing, an apple of gold on a plate of silver.

I would say that Gorsuch on Bostock wasn't simply literalist. I'd describe it, indeed, as an abstractionist, reductionist piece of simpering tendentiousness for the purpose of appeasing certain political voices and au currant sensibilities - very much in the John Roberts mode of Constitutional perfidy. But, I can understand why Alito would more simply and diplomatically stick with "literalist". But, again, wonderful to read this, all of it.

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Michael Bond
on December 03, 2020 at 11:08:39 am

I admire everything about McGinnis' feel-good essay, almost as warmly as I endorse the singular substance, form, tenor and tone of Alito's courageous, clarifying, constitutional "coming out" speech to the Federalist Society. Alito was clearly drawing a line at Roberts feet. No more bastard, second-class children, please, among our sacred family of constitutionally-protected natural rights. No more Supreme Court-endorsed, fostered and perpetuated secular hostility to God and guns. And perhaps even, if luck is with us, to Hell with footnote four of Carolene Products which started all this King Learean nonsense of dividing our constitutional kingdom according to the personal fealties of 5 Justices, rather than according to what the founders wrote and meant. As Madison emphasized (again, recently highlighted by McGinnis) why is our right to property less important than our property in rights, when the text of the original constitution makes no such invidious distinction?

I take McGinnis' title to be a word play on the title of a terrific film produced by a personal friend. The movie and life ended badly for Carlito Brigante, but in dying Carlito empowered his lover and their unborn child to seek a better life. As McGinnis suggests, may originalism, itself, likewise seek a better, more enduring home in Alito's reverence for the legal tradition from which the constitution originated, and flee the doctrinally-unprincipled, politically-chaotic, shelter of the orphanage provided originalism by helter-skelter Swamp Creature Roberts.

Two other comments: Besides the Bostock train wreck (No precedent here, per Gorsuch. HaHa!), Gorsuch's textualism without the text's context raised its serpentine head last term in McGirt. 6 minus 2 is 4, so, even with the felicitous addition of Justice Barrett, Gorsuch can be dispositively-dangerous unless he dumps his ardor for the untethered words of rational abstraction.
And, finally, I am perplexed by McGinnis' repeated use of the word "parole" to describe what he sees as the Supreme Court's promising new path (Alito's Way.) I understand that McGinnis does not mean "parole" as in a criminal's conditional release, but rather means "parole" as in the common use of language. Still, I fail to appreciate the use of "parole" to describe as new and common language the Court's embrace of originalism, underway since Heller in 2008 in which originalism was adopted by the majority and the minority and inarguably since Elena Kagan's Congressional confession of her originalist faith in 2010.

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on December 03, 2020 at 11:09:58 am

Excellent essay.
Agree wholeheartedly with the characterization of "abstractionist" jurisprudence.

Bostock is as much an abstract painting as are any of the works, "ouevres" (as the artists would have them known, that are to be found in a museum of modern art and just as fanciful, informative and dreadful, not to mention as incomprehensible. Unfortunately, there are far too many who feign both appreciation and comprehension of such distortions of reality bowing in obeisance to the cultural tide.

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on December 03, 2020 at 11:45:05 am

Here, here, one fine essay. Now let's get down to selecting cases that will afford the opportunity to more aptly confirm the kind of democratic-republic tradition that has allowed the US to prosper politically and economically; changes to Constitutional law will be made by the Article V amendment process, and Congress shall not delegate its essential Article I law making power to an unelected administrative bureaucracy.

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Michael Timmer
on December 03, 2020 at 15:55:26 pm

“Oh what a tangled web they weave...”


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on December 04, 2020 at 12:27:17 pm

Perhaps this fine essay can be summed up by stating that Justice Alito’s Way, this side of Heaven, is the way that is necessary to secure, if we desire to protect our inherent Right to both Liberty and a Happy Death, and for this, The Good Justice deserves our utmost gratitude.

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Image of Nancy
on December 04, 2020 at 16:09:00 pm

A few observations:

1. The picture of Justice Alito that accompanies this essay looks a little like Mel Brooks.

2. A fairly widely accepted principle of gardening, or even more extensive forms of agriculture, is that the seeds determine what grows. If you plant tomato seeds, you get tomato plants, regardless of the process used to nurture them. In an analogous fashion, in the setting of decision making, legal reasoning, or abstract analysis, assumptions often determine conclusions. If the assumptions are sufficiently substantive, their adoption may determine the outcome regardless of the particular variety of originalism or textualism that makes up the process.

This principle of assumptions, which does not especially require that the assumptions be identified or defended and they usually are not, can be observed in Justice Roberts's recent COVID/religious freedom jurisprudence. He appears to assume that "safety" is a sufficient grounds for infringement on the free exercise of religion, and further, that "experts" are sufficient authority for determining when rights must yield. The assumption pretty much determines the outcome, and intervening analysis becomes more or less pro forma. Originalist defenders of COVID-related interventions may for example cite Federalist 23:

The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can be widely imposed on the power to which the care of it is committed.

The mischief arises not from different theories of interpretation, or of placing rights in historical contexts. The problem is that there is a strain of modern jurisprudence that assumes that constitutional rights are simply a byproduct of "values," and therefore can be weighed against and subordinated to an ever evolving menu of political objects. The value most in vogue at the moment is "safety."

3. The idea of safety is protean. There appears to be a widely accepted fallacy that "safety" is intimately associated with the right to life, and that a claim that something, even something as innocuous as an opinion, imperils safety is a claim that it is a threat to life. Thus, campus speakers may be deplatformed, or faculty sanctioned because the value of "safety" conflicts with the right of free speech. Again, this outcome is sustained by acceptance of a dubious assumption: that rights are contingent upon other people's values and subjective beliefs. The left has taken this principle and run with it: we now have demands that rights be subordinated to "values" of diversity, inclusion, "anti-racism," "climate justice," and any other type of justice amenable to an adjective. Once this assumption is accepted, no mode of originalist thinking will overcome it. The assumption must be rejected outright, with a clear declaration: rights do not wax and wane with social fads and transitory concerns. If rights are applicable to all people then they are not contingent on empathy, values or subjective grievances. If rights are not applicable to all people then the appropriate remedy is to make them so, not try to replace them with ideological twaddle.

4. At a certain point, one would think that state Governors relying on a "public health emergency" to justify all manners of intrusion into people's rights of worship, association, freedom of movement, privacy, etc., would run afoul of the United States Constitution, Article IV, section 4 which guarantees to the people of each state a republican form of government. A governor ruling indefinitely by diktat is not a republican form of government, emergency or not. Again, the contrary view is bolstered not by a principle, or uncontroverted fact, but by an assumption, and even more so by a convenient opinion: that State officials have unlimited (and apparently unchallengeable) power to address safety, against which even the most fundamental rights must yield. It seems like common sense that there should be a hard time limit on emergency powers, and under no circumstances should such powers accommodate arbitrary classifications of rights, or who may exercise them.

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on December 05, 2020 at 17:26:55 pm

Let me add something to Z9Z99's excellent comments.
1) Agreed with the Mel Brooks lookalike. Had the same impression.
2) Recall the old adage about assumptions. It makes an ass-u-me.
3) The phenomenon (in #4) AND practice of Gubernatorial (and Mayoral, etc) *diktats* is a flows directly from the highly consequential misunderstanding and misguided practice of defining rights as derivative of "values", either social/ cultural or governmental values. If "rights" are not self sustaining, if they do not predate government, then it follows that they are derived or generated by government. As "values" change, so too do rights. Alterations, reductions and / or elimination of rights may then be properly considered and effected. All that then remains is to determine the manner in which these rights may be altered. Presently, one mechanism for "properly" accomplishing this is the *diktat* issued by the proper Administrative or governing authority.

The loss of liberty is DIRECTLY attributable to the Progressive's view that rights emanate from Government, are sustained by government in accordance with contemporary "values" and are subject to change according to some intervening or superseding values.
Thus is tyranny imposed!

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Image of gabe
on December 06, 2020 at 18:14:17 pm


I agree, and would undertake to clarify my thoughts a bit more.

The idea that rights are contingent upon some ill-defined notion of "values" is one of the more corrosive threats to our political order. It is also becoming more prevalent. Colleges and universities are quick to cite their institutional "values" to justify disciplinary action against students and faculty accused of bad-think. Corporations cite some ethereal canon of values to validate what is more transparently regarded as appeasement of social justice grievance. No one in their right minds thinks that asking legitimate questions about the goals and methods of "anti-racism" theory transgresses a "value" that was not discovered the day before yesterday. Of course, private businesses and preening, if ludicrous, institutions of higher education can profess what they like about "values." They have every right to indulge in whatever craven expediencies will placate their most vocal and irrational constituents. They have the luxury of paying mere lip service to "rights" while engaging in theatrical angst. Thus we see the embarrassing absurdities of Haverford, Yale, Evergreen, Middlebury, etc. We see the "anti-racist" platitudes, affirmations of the primacy of "safety," self-contradictory and vacuous commitments to "inclusion," that the academy hopes will provide another day's illusion of being above the realities outside of its walls. Colleges and businesses can get away with this silliness for a little while, but the institutions of government cannot.

Some second rate liberal arts school can pretend to value free expression for example, while deplatforming views that are contrary to progressive sensibilities. They can ignore rights at the cost of being no more than hypocrites, and pretend that doing so is noble, because of "values." Courts cannot. Courts cannot demur when rights are opposed by appeals to values, particularly when such values are established by no more than acclamation. Competing considerations of rights and purported values cannot be decided on which is presumed to have priority. Rights and values are not i the same category; they are not interchangeable or directly comparable.

Admittedly, this is not a straightforward principle. It may, for example, be argued that the right of free speech does not extend to pornography because of a conflict with societal values. Resolution of this conflict requires a much more rigorous concept of both rights and values than is apparent in, for example, the gossamer analysis of Justice Roberts. What is necessary is a more serious conception of rights as something other than social accommodations. One misses, for example, the detailed consideration of the relationship between rights and duties, once prominent on this site in the comments of R. Richard Schweitzer. Instead, we are left with the lazy and perilous views of the Chief Justice:

And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.

Note the assumptions contained in the language: "significant," "determinations," "public health officials," "necessary," "public safety." Note the lack of any standards or discussion as to whether any or all of these have any limiting principles. Worse still is Justice Breyer's hand-waving:

The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants' First Amendment challenges.

(emphasis added)

It has come to this. A Justice of the United States Supreme Court opines that Constitutional Rights must be balanced against "administrative considerations." We need not even get into Sotomayor's credulous, silly and illogical dissent, other than to note that her naive claim that the Diocese of Brooklyn is no longer subject to the numerical caps on attendance because of "the success of New York's public health measures" displays a lack of discernment and logic that is embarrassing in a Supreme Court Justice. If the Chief Justice really is concerned about the reputation of the Court, he would have done well to suggest in his dissent that Justice Sotomayor was suffering from a cold, and wrote her dissent under the influence of copious consumption of cough syrup.

Neither the reputation of the Court nor the Constitutional rights that it should respect can survive the mediocrity of the Chief Justice and Justice Sotomayor, nor the opportunism of Justice Breyer. More is required of a free people.

What seems to be lacking currently is not a workable approach to Constitutional and statutory interpretation, but a popular appreciation of rights, and a rejection of the notion that rights are just a romantic vestige of revolutionary folklore, and should not be allowed to impede "progress."

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on December 07, 2020 at 11:13:38 am

“Admittedly, this is not a straightforward principle. It may, for example, be argued that the right of free speech does not extend to pornography because of a conflict with societal values.”

The right of free speech does not extend to pornography, because pornography is a form of slavery that sexually objectifies the human person and denies the inherent Dignity of the human person as a beloved son or daughter.
Authentic Love, which is devoid of every form of lust, does not serve to enslave us, but serves to set us free from all that is “an offense against reason, Truth, and right conscience, from all that would result in a failure in genuine Love for God and neighbor caused by a perverse attachment to certain goods (or persons), an utterance, a deed, or a desire contrary to Eternal Law”. The desire to engage in a sinful act, does not change the sinful nature of the act, thus every act that sexually objectifies the human person, and denies our inherent Dignity as beloved sons and daughters, “wounds the nature of man and injures human solidarity”. (Catholic Catechism 1849)

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on December 03, 2020 at 22:56:15 pm

[…] 11. John O. McGinnis: Alito’s Way […]

on December 03, 2020 at 23:55:22 pm

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on December 31, 2020 at 07:57:27 am

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on January 03, 2021 at 09:52:13 am

[…] is no longer the swing justice. Originalists are a plurality, if not a majority, on the Court and as the justices themselves realize, originalism will be the framework for constitutional […]

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