At his substack (Cass’s Substack), Cass Sunstein: Originalism’s Remarkable Triumph. From the introduction:
Justice Samuel Alito has a new book coming out, and the subtitle is striking: An Originalist’s View of the Constitution, the Court, and the Country.
See? It looks like an originalist manifesto. (And note well: An originalist’s view not just of the Constitution – also of our country.)
Here are some words from the publisher:
In this surprisingly personal book, he vigorously defends his “originalist” approach to the Constitution, identifies the threats to our liberties, and reflects on faith, the nature of law, and American culture.
Here’s what makes this so interesting. If you asked specialists to name originalists on the Supreme Court, Alito would not be the first they would mention, or the second, or the third, or the fourth. He might not be mentioned at all.
To be sure, he has been an important and distinctive voice on the Court. But for better or for worse, he has not been a distinctly or consistently originalist voice on the Court.
Here comes his book, with that subtitle: An Originalist’s View of the Constitution, the Court, and the Country.
Wow. What should we make of that? …
And in conclusion:
One thing is clear: As a matter of history’s arc, the subtitle is a testimony to the remarkable triumph of originalism – one of the most extraordinary developments in the entire history of American constitutional law.
After Justice Scalia died (in 2016 (not so long ago), it looked as if originalism might be dead too, a kind of historical curiosity. It would have been odd or reckless to predict that originalism would soon command a majority on the Supreme Court. It would also have been odd or reckless to predict that Justice Alito would write a book proclaiming his commitment to originalism.
But here we are.
I agree, both that I found the subtitle of the forthcoming book unexpected, and in that it seems to say something about the strength of originalism. Professor Sunstein offers several possible explanations for Justice Alito apparent turn, including “One possibility is that Justice Alito is a convert. He was not an originalist in (say) 2007 or 2012. He is an originalist now.” I think this may well be the right one.
Mike Rappaport adds: I have long regarded Alito as a most a fellow traveler to originalists, in part because of his exceedingly strong views about precedent. But his proclaiming himself to be an originalist in such a visible way may force me to rethink this view once I read the book.
Posted at 6:01 AM