Bench Memos

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Alito on Originalism’s Ascent


I attended The American Spectator’s annual Robert L. Bartley Gala last night, and Supreme Court justice Samuel Alito gave the keynote address. He was in top form — some very funny jokes and some very serious points.

I thought his most interesting remarks had to do with how the Supreme Court is increasingly returning to Blackstone’s “text first” method of interpreting laws — before trying to imagine what legislators might have had in mind, and before implementing their own policy preferences, judges should read the law and apply the plain language to the situation at hand. Only if the language is unclear, or if the meanings of words have changed over time, should judges move on to other methods of interpretation.

He had two examples, an anecdote and a statistic, to back this up. The anecdote was that in the Second Amendment case D.C. v. Heller, both the majority opinion and the dissent were originalist; both took the language of the law and asked what those words meant at the time they were written. The statistic was that in recent years (I forget the exact time frame), judges have used dictionary definitions more often than they have through the entire history of the court.

Of course, we still don’t have anything resembling an originalist court, a court that interprets law rather than making law. And under President Obama, this trend could reverse itself depending on which justices retire or pass away. But it’s refreshing to know the court’s been moving in that direction of late.

Politico has a piece on the event here.


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