The surprising conservative backlash against Justice Alito

Justice Samuel Alito’s new book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, isn’t going to set the world on fire with its bold new ideas. It’s mostly a collection of Alito’s old speeches. 

But if the book treads familiar ground, the reception to it among writers who share Alito’s broad alignment with the political right is quite surprising. Three recent reviews of Alito’s new book —  all by right-leaning authors — sound a lot like the longtime liberal criticisms of Alito.

All three of these reviews accuse Alito of engaging in results-oriented decision-making — meaning that he often seems to start with the outcome that he prefers, and then comes up with a rationale to justify that outcome. This, they argue, is at odds with Alito’s fairly recent decision to label himself an “originalist,” an approach to judging that’s long been sold as a way to keep judges from mistaking “their own predilections for the law.”

Originalism, for the uninitiated, is the idea that the only legitimate way to interpret the Constitution is to ask what its words meant at the time it was ratified. It’s more than just a fashionable idea among many Republican lawyers and judges. Many legal conservatives view originalism as a central part of their professional identity, and powerful conservative organizations like the Federalist Society have long evangelized originalism as the one true way to interpret the Constitution.

Yet, a consistent theme in the critical reviews of So Ordered is that Alito’s actual approach to judging cannot be squared with his decision to label himself an “originalist” in the book’s title. As Harvard law professor Jack Goldsmith, a conservative who has written critically about originalism in the past, writes in his review of the book: “Alito’s embrace of the originalist label is also likely to come as a surprise to people on the left and the right.”

Goldsmith, who led the Justice Department’s Office of Legal Counsel during the second Bush administration, writes in his review of the book that early proponents of originalism, including Scalia, often sold it as a more restrained alternative to “a liberal conception of judging called ‘living constitutionalism.’” Goldsmith says that approach, which was ascendant among liberals several decades ago but has since fallen out of favor, read the Constitution as an adaptable document whose meaning could evolve to deal with “current needs.” 

Conservatives needed an intellectually consistent way to put the brakes on that impulse, and originalism was their answer. By treating the Constitution as an inflexible charter whose meaning was fixed at some distant point in the past, Scalia and his fellow travelers hoped to “limit or reverse the progressive transformation of American society set in motion by Supreme Court decisions that had expanded criminal-defense rights, ended prayer in public school, recognized the rights to contraception and abortion, strengthened voting equality, and supported affirmative action and busing.”

Now that movement conservatives control the Supreme Court, however, it’s less clear whether originalism is still useful to conservatism. As Jason Willick, a conservative Washington Post columnist, writes in his review of Alito’s book, “originalism can get in the way of the right’s ambitions.” Sometimes, an honest application of originalism produces liberal results.

Willick interprets Alito’s book as an attempt to “keep the marriage” between conservatives and originalism together. But if that’s true, it is an open marriage. Alito is happy to make originalist arguments when they suit his preferred outcomes. But his greatest value to conservative Republicans is often that he is willing to write non-originalist opinions that reach the result his team desires, but that a more principled originalist would view as beyond the pale.

On the surface, the fact that conservative intellectuals are starting to notice, and criticize, Alito’s weak commitment to one of the conservative legal movement’s core ideas might indicate that a schism is forming between committed originalists and more flexible partisans like Alito. Perhaps the conservative legal movement is becoming a victim of its own success?

In So Ordered, Alito seems to be suggesting the opposite: He’s offering proof that a judge can still identify as an out and proud originalist, even if they enjoy frequent flings with the right-wing version of “living constitutionalism.” 

More broadly, if Democrats hope that the growing tension between Republican judges’ preferred methodology and their ability to reach reliably conservative results will lead to more liberal outcomes, they should expect to be disappointed. Alito, despite his apostasy, is still one of the most celebrated figures in the Federalist Society, the powerful conservative bar association that has long evangelized originalism as the one true way to interpret the Constitution. 

What is Alito’s actual approach to judging?

So Ordered offers a simple way for judges whose originalist and conservative identities are in tension to resolve that tension: They can continue to self-identify as “originalists,” while still reaching whatever result they want in the most important cases.

Alito hasn’t always described himself as an originalist. In fact, at times he’s openly mocked originalism. In a 2011 argument about how the First Amendment applies to violent video games, Alito responded to an originalist question from Justice Antonin Scalia by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” 

In the past, Alito has, at some points, called himself a “practical originalist,” and at other times expressed doubt about that self-description.

In their reviews, both Goldsmith and Willick highlight Alito’s statement that originalism can only survive as “anything other than a minor academic curiosity” if it is “widely viewed as generally producing good results.” But, as Willick notes, this raises an important question: “Viewed as producing good results by whom?”

The answer to this question is that the justice wants to reach results that he personally, as well as other members of the Republican Party’s right flank, view as good. That, as Willick lays out, entails cracking down on broad exercises of executive power during the Obama administration, then letting those reins go slack during Donald Trump’s presidencies. 

The actual approach to judging Alito describes in So Ordered, the libertarian author Damon Root writes, sounds “much more like the results-oriented ‘living constitutionalism’ that originalists are supposed to oppose.”

Goldsmith, Willick and Root are hardly the only right-leaning thinkers to notice Alito’s thin commitment to originalism. There is also Alito’s closest ideological ally on the Court, Justice Clarence Thomas.

The occasion for Thomas’s criticism was Consumer Financial Protection Bureau (“CFPB”)v. Community Financial Services (2024), a bizarre lawsuit where a lower federal court claimed that an entire federal agency, the CFPB, violated a provision of the Constitution that had literally never been cited by any other court in all of US history to strike down a federal law. 

That provision says that the Treasury may not pay money unless Congress allows that spending through “Appropriations made by law.” As Thomas explained in the Court’s opinion in CFPB, this constitutional provision merely establishes that Congress must identify a “specified source of public money” that an agency may draw upon when it funds that agency. Because the CFPB cleared this low bar, it is constitutional.

Alito’s dissent, meanwhile, did not really make a legal argument against the CFPB. Instead, he spent the bulk of his dissent discussing centuries-old conflicts between England’s Parliament and its king, which eventually inspired the drafters of the Constitution to place appropriations in Congress’s hands. Yet, as Thomas writes, Alito “never connects its summary of history back to the word ‘Appropriations.’” Alito simply listed a bunch of historical facts that are tangentially related to the legal question before his Court, then leapt to the conclusion that the CFPB is unconstitutional.

Alito, in other words, did not actually practice originalism when he wrote this dissent. As Alito concedes in So Ordered, originalism isn’t simply the idea that judges should rely on historical sources when deciding cases. It is, in Alito’s own words, “the theory that constitutional provisions should be understood to mean what the public would have taken them to mean when they were adopted.” Originalists, in other words, are supposed to use history to determine what the words of the Constitution mean, not to vomit historical anecdotes onto a page before reaching an irrelevant legal conclusion.

So Alito’s CFPB dissent is not originalist, but it is entirely consistent with the results-oriented approach to judging that even his conservative critics have begun to notice. One of Alito’s major projects as a justice appears to be attempting to dismantle anything accomplished by President Barack Obama. The CFPB was created by the financial reform legislation that Obama signed in 2010. Alito has also tried three times to kill Obama’s signature legislative accomplishment, the Affordable Care Act.

Yet, as Goldsmith writes in his review of So Ordered, Alito “has supported the Trump administration in every second-term case of importance, including with dissents in every major Trump loss.”

Beyond his unapologetic partisanship, Alito is, as law professor Neil Siegel wrote in a 2017 review of the justice’s career, “the primary judicial voice of the many millions of Americans who appear to be losing the culture wars.”

In So Ordered, for example, Alito repeatedly brings up an argument against same-sex marriage that he first raised in his dissenting opinion in Obergefell v. Hodges (2015), the Court’s landmark marriage equality decision. Same-sex marriage should remain illegal, Alito claims, because its legalization “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” Alito feared that, once gay equality became enshrined in the law, Americans who reject that equality “risk being labeled as bigots.”

But this isn’t even a legal argument, much less an originalist one. The First Amendment’s Free Speech Clause protects the right to call someone a bigot, even if Alito believes that the charge is unjustified. And the First Amendment’s guarantee that everyone may freely exercise their religion allows believers in liberal faiths to teach others that God abhors discrimination. The Constitution has never been understood to deny civil rights to a group of people because someone might speak disparagingly about individuals who oppose that right. If it did, constitutional rights could not exist.

All of which is a long way of saying that Alito’s conservative critics are right to label him a results-oriented judge. He has no real commitment to a principled theory of interpretation like originalism. His approach to individual cases often turns on whether the defendant is a Democrat or a Republican. And many of his opinions do not so much make legal arguments as, to borrow the words of Lionel Trilling, rely on “irritable mental gestures which seek to resemble ideas.”

Originalists need Alito more than Alito needs originalism

Originalism is a powerful tool in the hands of judges who wish to radically change how the Constitution is understood. In the American legal system, courts typically follow a principle known as stare decisis — Latin for “to stand by things decided” — which holds that judges should almost always follow the legal rules laid down by previous decisions, even if a judge does not like how that earlier case was decided.

Originalism, by contrast, posits that a judicial decision’s legitimacy flows, not from its alignment with prior precedents, but from the judge’s understanding of how the words of the Constitution were originally understood. This allows judges who wish to toss out longstanding legal rules to wrap their opinions in the trappings of America’s founding, and to paint judges who honor stare decisis as betrayers of the Constitution’s true meaning.

Historically, originalism has been used by liberals and conservatives alike to justify dismantling legal rules they despised. Franklin D. Roosevelt-appointed Justice Hugo Black, for example, wielded originalist arguments to attack precedents that undercut the New Deal, or that otherwise interfered with progressive economic legislation.

Similarly, conservatives like Alito use originalist rhetoric to undermine liberal precedents that they abhor. Alito’s opinion in Dobbs v. Jackson Women’s Health Center (2022), which abolished the constitutional right to an abortion, is chock-full of originalist arguments that “until the latter part of the 20th century, such a right was entirely unknown in American law.”

But one problem with the Constitution’s early history, at least if you are a results-driven judge, is that it does not map perfectly onto anyone’s modern-day political beliefs. While originalism sometimes gives judges strong arguments that they can use to undermine previous Supreme Court decisions, a results-oriented judge like Alito will inevitably want to reach outcomes that originalist arguments cannot support.

Consider, for example, affirmative action. There is no plausible originalist argument against it. The same Congress that drafted the 14th Amendment, which the Court’s Republican majority used in 2023 to abolish race-conscious admissions programs at most universities, also enacted numerous affirmative action programs — ranging from the 1866 Freedmen’s Bureau Act to a much smaller program providing money “for the relief of freedmen or destitute colored people in the District of Columbia.”

But the dearth of originalist arguments against affirmative action has not stopped this Court from implementing its preferred racial policies. As Goldsmith notes, only three members of the current Court — Thomas, plus Justices Neil Gorsuch and Amy Coney Barrett — “regularly try to practice originalism, and they do so very unevenly.” So, when the Republican justices wish to reach a result that cannot be justified by originalist arguments, the opinion is typically authored by one of the Court’s three non-originalist Republicans.

Students for Fair Admissions v. Harvard (2023), the decision ending affirmative action on college and university campuses, was authored by Chief Justice John Roberts — who declared during his 2005 confirmation hearing that “I do not have an overarching judicial philosophy that I bring to every case.” The Court’s more recent decision in Louisiana v. Callais (2026), which applied the Republican justices’ skepticism of race-conscious laws to voting rights, was authored by Alito.

Republicans, in other words, would be in rough shape if they actually filled the Supreme Court with principled originalists. The conservative legal project depends on flexible, results-focused justices like Alito, who will reach ideologically correct conclusions even when originalism calls for a more liberal result, and who will sign their name to opinions that may make their originalist colleagues quietly cringe.

Does that mean that originalist rhetoric will fade in Republican legal circles? It’s certainly possible. In So Ordered, Alito gives a mixed review of the work of Adrian Vermeule, a Catholic conservative law professor at Harvard who argues that legal conservatives should abandon originalism altogether because it constrains their ability to impose their own vision of the “common good.”

Trump, meanwhile, has had a falling out with the Federalist Society. While the Federalist Society successfully pushed Trump to appoint outspoken proponents of originalism to the bench during his first term, many of his second-term nominees’ primary qualification is their personal loyalty to Trump. At least three of his former criminal defense lawyers are now US Court of Appeals judges.

At the same time, some members of the Court’s Democratic minority appear to be taking a page from Justice Black’s playbook. Liberals who disagree with the current Court’s precedents will often find that constitutional history supports their preferred outcomes. Justice Ketanji Brown Jackson, in particular, often wields originalist arguments to disparage her Republican colleagues’ approach to race.

So it’s certainly possible to imagine a future where Republicans abandon originalism in favor of Trump’s personalism or Vermeule’s unapologetically results-driven approach. Democrats, meanwhile, could become outspoken originalists because originalism gives them a vocabulary they can use to argue against applying stare decisis to the Roberts Court’s most right-wing decisions.

But this future is not inevitable. The most important lesson taught by Alito’s new book is that judges do not need to hold any principled legal views in order to identify as an “originalist.” Regardless of how partisan your rulings are, calling yourself an originalist is enough.