From Vox · Ian Millhiser · · 2m
Justice Alito’s conservative backlash
Conservative critics accuse Justice Alito of prioritizing results over originalism in Supreme Court decisions.
In brief
Conservative critics accuse Justice Alito of prioritizing results over originalism in Supreme Court decisions. Justice Alito’s book reveals he often reaches conservative outcomes without strict originalist principles, despite claiming to be an originalist. Originally reported by Vox.
Justice Alito’s new book
Justice Samuel Alito Jr. released a book titled So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.
Conservative backlash
Three right-leaning reviews criticize Alito for prioritizing results over strict originalist principles in his judicial decisions.
Originalism definition
Originalism interprets the Constitution as meaning what it did at ratification, contrasting with living constitutionalism that evolves with current needs.
Alito’s inconsistent stance
Alito has called himself a practical originalist at times but openly mocked originalism in past arguments, including a 2011 video game debate.
CFPB dissent
Alito’s dissent in CFPB v. Community Financial Services (2024) used historical anecdotes without connecting them to the legal question about appropriations.
Results-oriented approach
Alito often reaches conservative outcomes by ignoring originalist principles, such as blocking Obama’s Affordable Care Act and targeting Democratic opponents.
Originalism’s role
Originalism allows judges to challenge precedents but Alito’s flexible approach ensures conservative results even when originalism would support liberal outcomes.
Conservative legal movement
The Federalist Society, which promotes originalism, has seen Alito’s results-focused approach challenge its core principles despite his influence.
Alito’s influence
Alito has supported Trump’s administration in every second-term case, including dissents in major Trump losses.
Originalism’s limitations
Originalism cannot justify conservative outcomes on issues like affirmative action, where Alito has used non-originalist arguments to block race-conscious policies.
Conservative critics
Harvard law professor Jack Goldsmith and Washington Post columnist Jason Willick argue Alito’s results-oriented approach undermines originalism’s role in conservative legal strategy.
Alito’s strategy
Alito identifies as an originalist while using flexible interpretations to reach conservative outcomes, such as opposing same-sex marriage legalization.
Originalism’s future
Republicans may abandon originalism for Trump’s personalism or Adrian Vermeule’s results-driven approach, but Alito’s influence keeps it relevant.
Alito’s legacy
Alito’s book shows judges can identify as originalists without strict adherence to originalist principles, prioritizing results over theory.
The takeaway
Justice Alito’s book reveals he often reaches conservative outcomes without strict originalist principles, despite claiming to be an originalist.
