At Volokh Conspiracy, Josh Blackman: Justice Alito's Interview in the Wall Street Journal. From the introduction:
… [O]n Friday, the Wall Street Journal published a "weekend interview" with Justice Alito. The Justice spoke with the Journal in early July. In April, Alito also spoke with the Journal for "four hours in two wide-ranging sessions" in his chambers. (I wrote about that interview here.) Perhaps the most significant aspect of the interview is that it happened at all. On the current Court, Justice Alito is the member most likely to talk to the press. And he had a lot to say–including about the SCRET Act, and his colleagues. Here are thirteen highlights.
He really does have 13. On originalism:
Eighth, Justice Alito turned to his views on history and originalism.
That demonstrates a central feature of Justice Alito's jurisprudence: its emphasis on historical context. "I think history often tells us what the Constitution means," he says, "or at least it can tell us what the Constitution doesn't mean." His dissent in Obergefell v. Hodges (2015) is a case in point. "It's perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage," he says. Before this century, "no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage." The first country to legalize it was the Netherlands, effective in 2001.
Justice Alito has described himself as a pragmatic originalist. In practice, there are probably not that many differences between Justices Alito and Thomas, but in some criminal law cases, where original meaning favors the defendant, Justice Alito may remain skeptical of originalist arguments. Gundy comes to mind. Speaking of Gundy, Justice Alito returned to Justice Gorsuch.
Ninth, Justice Alito addressed Bostock, indirectly at least:
The same attention to history informs Justice Alito's textualism. "I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically," he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination "because of . . . sex," covers "sexual orientation and gender identity."
Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is "because of" sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity "hardly existed as a concept, even among professionals in the field," as Justice Alito says. "When it's very clear that the author of the text . . . cannot have meant something, then I don't think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result."
Posted at 6:30 AM