At Law & Liberty, John McGinnis: Alito’s Way. From the introduction:
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.
And from later on:
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.
In conclusion:
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.
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.
(Via How Appealing.)
Posted at 6:08 AM