The news media treated Justice Samuel Alito’s recent speech to the Federal Society in an all-too predictable way – as another cannon explosion in the Culture War. But Alito’s remarks were far more voluminous and complex, indicating the future direction of the court that the confirmation of Amy Coney Barrett was redone. They show that Chief Justice Roberts is no longer the central actor in the court, that there is renewed focus on a more neutral and equal treatment of various constitutional rights, that originalism will be the probation of the court in the future, and that Alito will be in the upcoming debate take a position on the nature of originalism: he will be the originalist of tradition.
Chief Justice Roberts
The boss was a target of this speech. At the center of the conversation was Alito’s complaint about a case in which he strongly disagreed – one in which the court upheld Nevada’s Covid restrictions on churches despite the state’s loosely restrictive restrictions on casinos, its main industry. Roberts gave the swing vote of the majority.
However, Alito also complained that the court had not ruled any questions on the second amendment on the matter since Heller and McDonald met about a decade ago. The reason here is again Roberts. In addition to Alito, three judges (Thomas, Gorsuch and Kavanaugh) raised concerns about the way in which the lower courts dealt with the second amendment. But the four did not vote for certiorari and raised more such cases than they had the opportunity. The most likely reason is that they are unsure of Robert’s position. Much of this uncertainty stems from the interest Roberts appears to have in distributing victories in order to maintain diffuse political support for the Court.
But both areas of law will almost certainly change with Barrett’s rise. As a judge at the district court, she voted for a more comprehensive reading of the second constitutional amendment than could be suggested by an uncritical reading of Heller’s dictation. It is generally believed that it is particularly sensitive to claims to religious freedom. With her replacement from Ruth Bader Ginsburg, Roberts still controls the mechanics of the court, but he no longer has the power he enjoyed when he was both the boss, with the power to assign opinions, and the middle justice with the Ability to swing the court its way in the most important cases.
Equal treatment of rights
Another theme in Alito’s speech is the need to treat rights equally. Alito expressly expresses concern that religious freedom is treated in a second class way. “It pains me to say that, but in certain areas religious freedom is quickly becoming an unfavorable right.”
His position on the second amendment is similar. How can the failure of the Court of Justice to oversee the lower courts in explaining this right be reasonable when it has taken on so many cases to determine the content of other rights?
What exactly it means for amendments to be treated equally ultimately depends on their respective meanings. But Alito is right that rights must be treated neutrally in the sense that judges should not have more favorite rights than favorite children. For example, judges are unlikely to have maintained newsroom restrictions that were stricter than casinos if the government had imposed them. Unfortunately, there is a real risk that the second amendment will be treated less favorably than the first, as judges make a living from their opinions and are members of a class that benefits directly from freedom of expression.
Alito announces that he will be the opposite of an “abstract” originalist: an originalist who instead reads the original meaning of the Constitution, shaped by the traditions that led to its provisions.
Alito’s concern for neutrality extends to treating rights equally in different types of crisis. It is a trump card of constitutionalism that the court should be vigilant to protect rights – such as search and seizure – even when there are national security concerns. Alito’s remarks are a plea for applying this type of vigilance – particularly with regard to religious freedom – amid a pandemic.
The rise of originalism
Alito also clearly acknowledges that originalism will now be the probation of the court. “Much of the debate about constitutional and legal interpretation,” he noted, “is now taking place within, or at least using, the language of originalism and textualism.” Alito sees originalism and textualism as essentially similar: Both seek the original meaning of the constitution or a statute. This recognition is significant because Alito was viewed by many outside observers not as a staunch originalist but as a practitioner of the multiple “modalities” view of constitutional interpretation – a perspective that takes into account the importance of originalism but also takes into account such aspects as precedent and consequences .
I think that Alito’s characterization may never have been entirely correct, as following precedents is consistent with originalism in some cases. In first impression cases, Alito was an originalist, and in other cases he tried to bring the law back to its original meaning. But these current remarks suggest that Alito is likely to be a confident originalist going forward. And one of the reasons is that he wants to criticize some misapplied applications of these theories: He says, “I will say that we have seen the emergence of what I believe to be flawed elaboration of Justice Scalia’s theories [of originalism and textualism]and I look forward to a friendly and fruitful, full debate about where his thinking is leading. “
One of his goals here is clearly the opinion of Justice Neil Gorsuch in Bostock, which he described in his dissenting opinion as the equivalent of a “pirate ship sailing under a textualistic flag”. The essence of Alito’s criticism (which I agree with) is that Gorsuch’s reading was literal rather than textual and failed 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 indeed shown that this preference for abstraction makes originalism indistinguishable from living constitutionalism.
Alito the traditionalist
The distrust of abstract readings without context reflects Alito’s concern to recognize the importance of the legal tradition. Without the proper context of their time and place and the legal rules by which they were construed, legal provisions can be mistakenly understood as abstract principles, and judges can then use those principles to transform society without the benefit of the slower process democratic considerations. Alito announces that he will be the opposite of an abstract originalist: an originalist who instead reads the original meaning of the constitution, shaped by the traditions that led to its provisions. Important here is that Alito was a keynote speaker for the Tradition Project, a group of legal scholars who highlight the relevance of tradition to modern legal practice.
In keeping with his emphasis on the importance of tradition, Alito ends with the famous quote from Learned Hand: “Freedom is in the hearts of men and women; If it dies there, no constitution, no law, no court can do much to help it. “
The constitution and our legal system largely depend on the traditions that surround them. For this reason, Alito is calling on the Democratic senators who have threatened to “restructure” the court if it wrongly ruled a case of the second amendment. The Court’s work will be undermined if this practice becomes a new norm. Regardless of whether the trial is unconstitutional on grounds of positive law, it would undo the national traditions that make the Court of Justice a fully independent branch that acts as a balancing act for our constitutional system.
The new Roberts Court offers the greatest opportunity to rethink the methods of justice in decades. In this speech, Alito makes his offer for leadership. Its implicit message is that its approach best captures an understanding of originalism that reflects traditional legal practices and the political norms in which it is embedded.