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The surprising conservative backlash against Justice Alito

The Republican justice’s new book has convinced many of his political allies that he’s not entirely on the level.

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.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

Justice Samuel Alito has a new book, where he calls himself an “originalist.”

But several conservative writers disagree, pointing out that Alito is really just concerned with reaching results that he likes.

Ultimately, originalists need Alito more than Alito needs them, because without Alito’s flexible approach to judging, this Court couldn’t consistently reach conservative results.

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........

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