Justice Alito, Properly Ordered

F or Supreme Court justices, the written word is the central tool of their trade. It is how they exercise power; how they persuade colleagues, future justices, and academics; and how they instruct lower courts and the bar as to what the law is. It is therefore natural that they should write books and articles to defend the thinking that goes into their written opinions.

Justice Samuel Alito is the latest of the justices to write a book. So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, hit stores on Tuesday. It’s been the subject of his recent round of media interviews, including my interview on the book’s release date (published in two parts here and here). Twenty years into his tenure on the Court and 36 years into his career as a federal appeals judge, Alito has given a lot of speeches and written a vast number of judicial opinions, but he has never before published a book. So Ordered is a collection of 19 of his speeches, more than half of them delivered within the past decade, occasionally presented with short updates on the topic in the years since the speech was given. Even the title has a double meaning, as the customary conclusion of judicial orders is also used to mean that he has attempted to arrange the speeches into a coherent narrative of his judicial philosophy. A third, unstated meaning is that Alito believes in an ordered world and means to explain the proper place of a judge in that world.

Alito has a bit of a love-hate relationship with philosophy. On the one hand, the book displays the depth of his erudition, the importance of his faith tradition, and the effort he puts into ensuring that his decisions fit properly within the judicial role in a democratic republic that has a written constitution and written laws. Philosophy is very important to him: For example, there is a chapter on the Burkean virtues, and he discusses the philosophy of language itself. But he defines himself as a “practical originalist,” for whom the application of originalist and textualist theories of law in the day-to-day work of courts is far more important than any academic theory. He is scornful of navel-gazing academics, warns against utopians, and parts company with his colleague and frequent ally Justice Clarence Thomas when Thomas wants courts to go back to square one and fix wrong turns in the Court’s jurisprudence.

A leading example that Alito cites is the Court’s method of using the 14th Amendment to apply the Bill of Rights to the states (which the original Constitution did not do). The Court for the past century has cited the 14th Amendment’s due process clause as the source of this guarantee of enumerated and unenumerated rights. Thomas argues, correctly, that the due process clause was never originally understood to perform this function, which the framers of the 14th Amendment thought would be handled by the privileges and immunities clause. That wrong turn has consequences, not least the fact that the due process clause applies to “persons,” whereas the privileges and immunities clause applies to “citizens of the United States.” But in many cases, the Court’s current tests for applying both enumerated and unenumerated rights against the states will reach the same conclusion under either test — and given the thicket of precedent that has grown up around the due process clause, Alito doesn’t take lightly the invitation to burn it all down and start over. He makes a similar argument about accepting the Court’s settled doctrine on the dormant commerce clause.

Practical reality also means that opinions aren’t always as coherent as they could be when they need to attract the support of four other justices who have their own strong views. “I cannot forget occasions,” he writes, “when I sent a beautiful draft opinion to my colleagues, only to see it brutalized by deletions or additions that had to be made to secure majority approval.” Academics who scorn the resulting work product would do well to recall every time their own job required them to get the agreement of a faculty committee.

If there’s a word besides “practical” that dominates So Ordered, it’s “judgment.” The theory of originalism is simple, even mechanical. Judges are commanded to apply the law as it was written and understood when it was ratified by the people. To substitute their own judgments in place of the written text violates the supremacy of the people in the system. “Government by bureaucrats and judges is not government of the people, by the people, and for the people.” On this point, Alito is careful to distinguish the judicial role in other systems of government, noting that Saint Thomas Aquinas preferred equity and justice over law because he wrote in a monarchy with a canonized saint, Louis IX, as the dispenser of equity and justice, and where trial by combat was the preferred method of the law.

But theory is one thing; practice is another. Practical originalists, he emphasizes, need to accept that there will always be an ineradicable element of judgment involved in applying the written law (especially the Constitution, which is brief and general) to situations that it doesn’t explicitly resolve, as well as to discretion-heavy situations such as the emergency docket. The book’s lead essay, which he also published in a more compressed form in the Wall Street Journal, details a number of potential wrong turns that judges can take even if they are sincere about originalism’s premises. These wrong turns include failures of courage, overemphasis either on the literal text or on shreds of support in historical sources, and efforts to read philosophy (be it John Locke or the Catholic natural-law tradition) into text that was meant to be understood and ratified by 18th-century farmers who read it aloud in the local tavern.

As a practical thinker, Alito also traces originalism’s own history and its forebears. He pays ample and fond tributes to his former colleague Antonin Scalia, but also to non-originalist thinkers such as Learned Hand, Felix Frankfurter, and Alexander Bickel who represented other judicial and scholarly virtues. He doesn’t hide his disdain for decisions that he sees as prime examples of bad judging, especially Obergefell v. Hodges (which appears repeatedly as a cautionary tale, although he notes the stare decisis concerns that make it hard to overturn, and he disclaims any intention to do so) and Bostock v. Clayton County. He also demonstrates, as must any patriotic American, an appropriate contempt for Woodrow Wilson, twice quoting Wilson’s line that “a great deal of nonsense has been talked about the inalienable rights of the individual.” And he occasionally pushes back pointedly at more current targets. He chides law professor Steve Vladeck for criticizing the majority for following his own recommendations about the emergency docket and describes as “egregious” the decisions by D.C. District Judge Amir Ali in the USAID case.

As a good Burkean, he warns that tradition requires progress in order to develop, just as progress is lost without tradition to preserve it. Precedent is important, but in a system of decisions by judges, it can be “hard to tell whether a given precedent reflects the accumulated wisdom of the ages or simply the hubris of particular jurists. . . . If we make it impossible to weed out ill-advised precedents, then in the long run we cannot really have confidence that our body of precedent as a whole has benefited from a process of healthy winnowing and refinement.”

There are many provocative analogies. A chapter on baseball draws distinctions between those rules that can be interpreted by a computer and those that inherently involve judgment. (Here, I will pass over a paragraph on Chase Utley breaking Ruben Tejada’s leg with a dirty slide.) Alito asks whether it is un-originalist to play Bach on the piano, a then-newfangled instrument that Bach disliked. We also get many examples of Alito’s dry humor, albeit without his deadpan verbal delivery. He may be the funniest justice in recent memory. In a speech on the Covid pandemic, he notes that the Court’s landmark decision in Jacobson v. Massachusetts (1905), permitting mandatory vaccination, arose from an outbreak of smallpox in Cambridge: “I am all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge.”

Alito’s college thesis was on the Italian Supreme Court, and he continues to be interested in the postwar growth of American-style judicial review in Europe, which he lauds in a chapter adapted from a speech given in Zurich. He devotes extensive attention to the centrality of religious liberty and the civil-liberties overreaches of the Covid era. Some of the book’s later chapters, such as reflections on the Gettysburg address and on the Italian-American experience, are less directly connected to the thematic whole but still very much worth reading.

But it’s October, and a new Supreme Court term is starting. While you’re reading this book, the practical originalist will be back at his day job.