Justice Alito’s Free Speech Jurisprudence – Keith E. Whittington

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Justice Alito’s Free Speech Jurisprudence

Keith E. Whittington^*

When President George W. Bush nominated Samuel Alito to fill a seat on the Supreme Court of the United States in the fall of 2005, the right was amid a libertarian turn on freedom of speech and the First Amendment. An earlier generation of postwar conservatives had a distinctly ambivalent view about the First Amendment. While the core idea that freedom of speech is an important value and should be protected was broadly shared in the mid-twentieth century, conservatives were often quite critical of the ways in which the Court expanded the scope of protections for free speech in those years, not to mention the ways in which free speech was often being exercised by activists and artists on the political left.  Free speech controversies routinely revolved around conservatives calling for restrictions on expressive activity, and conservative politicians not infrequently made hay out of art and speech that offended popular sensibilities. Prominent conservative legal scholars like Robert Bork and Walter Berns argued for a more restrictive approach to the First Amendment than the Court had been taking.[1]

By the turn of the twenty-first century, things had become more complicated. The Federalist Society now features a “Freedom of Thought Project” to foster greater consideration of the collapsing “social consensus on the importance of being able to say controversial things.”[2] Its annotated bibliography of conservative and legal scholarship designed to introduce students and scholars to legal thought on the right pairs traditional conservative voices like Bork and Berns with more libertarian voices like Eugene Volokh and Michael Kent Curtis.[3] Jurists and politicians on the right have become vocal, if not always consistent, proponents of a robust view of free speech values and associated legal protections,[4] even while a new generation of conservative scholars and activists now complain about an excessive libertarian influence over the conservative legal mind.[5] The most prominent current free speech advocacy group is now the Foundation for Individual Rights in Education (FIRE), as the American Civil Liberties Union (ACLU) has retreated from its traditional commitments on that front, and FIRE is routinely denounced from the left as a “right-wing” group.

Justice Alito reflects that generational transition in the conservative legal movement. At his confirmation hearings in January 2006, then-Judge Alito was pressed hardest on First Amendment questions by Ohio Republican Mike DeWine. DeWine was particularly concerned that the Court’s First Amendment jurisprudence had become too accommodating to pornography, which the senator thought was a form of “lesser value speech” entitled to little constitutional protection.[6] Elsewhere in the hearing, however, DeWine found himself on the other side of the First Amendment issue, declaring “there is perhaps no right in our Constitution that is really as important as freedom of speech” and expressing his concern over a “disturbing trend” of dissenting voices being excluded from public places.[7] The nominee waxed enthusiastic about his own strong support for the freedom of speech.[8] Democratic Senator Russell Feingold worried most about whether as a circuit court judge Alito had been too aggressive in protecting the speech rights of students and had won the Golden Gavel Award from the Family Research Council as a result. The question led Judge Alito to point out that he was just applying liberal icon Justice William Brennan’s standards for protecting student political expression.[9] The ACLU filed a letter with the Senate expressing its deep concern over the Alito nomination, but notably admitted, “on the other hand, Alito has a generally positive record on issues involving free speech and the free exercise of religion.”[10] There was a time when a conservative nominee to the Court could not expect the ACLU to endorse his record on free speech issues (though perhaps in the future the ACLU will complain that conservative nominees have too liberal of a record on free speech), but times had changed.

As a Supreme Court Justice, Alito has continued to develop “a generally positive record on issues involving free speech.”[11] So much so, in fact, that Justice Elena Kagan was inspired to charge Alito with “weaponizing the First Amendment,” of being too “aggressive” with it and failing to recognize that it was “meant for better things” than protecting dissenting workers from being compelled to pay for political speech with which they disagree.[12] Justice Alito has not always favored parties bringing free speech challenges before the Court. He has, on occasion, thought the majority was too solicitous of free speech claims. But his opinions are notable for emphasizing the importance of protecting unpopular speech from legal suppression or sanction. Even when disagreeing with how his colleagues have approached a free speech issue, Justice Alito has taken a cautious approach to identifying potential restrictions on speech that does not encourage a broad deference to governmental authority to limit personal expression in the name of communal values or societal interests. Across several opinions, he has been particularly concerned with the complexity of protecting individual speech in places of heavy governmental regulation.

Protecting Unpopular Speech

In a recent speech, Justice Alito bemoaned the “growing hostility to the expression of unfashionable views.”[13] He viewed it as “[o]ne of the great challenges for the Supreme Court going forward . . . to protect freedom of speech.”[14] That freedom “is falling out of favor in some circles” and at risk of “becoming a second-tier constitutional right.”[15] As important as the work of the Court might be in elaborating and defending that right, Justice Alito repeated Judge Learned Hand’s admonition that the courts will not be of much help if liberty is not understood and valued by ordinary Americans.

Surely it is premature to say that the freedom of speech is in danger of being expelled from the group of “fundamental freedoms” that the post-New Deal Court said was at the heart of the constitutional enterprise and deserving of special favor from the courts. The Court in Gitlow v. New York elevated freedom of speech to a place of priority in the constitutional order, noting “we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”[16] Even after its 1937 retreat, the Court signaled that the freedom of speech was still of special judicial concern.

This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties.[17]

Justice Jackson emphasized that freedom of speech “may not be infringed on such slender grounds” as might justify state interference with liberties that were, in his eyes at least, less precious.[18]

It would be a remarkable about-face for the Court to truly push freedom of speech into a second-tier category. The Brandeisian effort to elevate speech to a distinctive position that justified heightened judicial scrutiny even when almost no other liberty did has become foundational to how generations of jurists have understood their task. To allow freedom of speech to be trumped by relatively modest societal interests would be truly revolutionary, and Justices on both the left and the right still seem quite committed to the core of free speech principles.

But it is certainly possible to see the dangers on the horizon. In his speech, Justice Alito pointed to what might be taken to be an increasingly censorious civil society targeting conservative speech in particular. George Carlin’s once scandalous routine on words you cannot say on television from the early 1970s now “seems like a quaint relic” given shifting societal norms around public profanity.[19] But Justice Alito imagines a new list of “Things You Can’t Say If You’re a Student or Professor at a College or University or an Employee of Many Big Corporations.”[20] Those who express socially or religiously conservative views risk “being labeled as bigots and treated as such by governments, employers, and schools.”[21] George Carlin might have represented the counterculture of the 1960s, but he was mainstream culture by the end of the 1970s. The evangelical right became politically active in the 1970s partly in response to that cultural transformation, but it is those who might once have identified themselves as part of the “moral majority” who now find themselves cultural outsiders. Like all dissident factions, they have a particular stake in hoping that the majority, or least the powerholders, embrace the virtue of tolerance. The libertarian right has something to offer the conservative right when it comes to carving out a place as a political and social minority in a majoritarian democracy.

Even if the freedom of speech does not get relegated to second-tier status in toto, the Court is quite familiar with how to characterize some forms of speech as less than fundamental. It is not hard to imagine a continuation of the long twilight war over where the boundaries are to be drawn between speech that is fundamental and speech that can be more easily subordinated to other values and concerns. Ken Kersch once wrote about how conceptual categories can get transmuted and “how conduct became speech and speech became conduct” as Progressives and New Dealers rethought what expressive activities were and were not worthy of substantial constitutional protection.[22] As he noted, there are ways “in which regime supporters publicly committed to and identified with a program of civil liberties work to constrict freedom which run counter to the substantive imperatives of the regime,” by “altering the definitions of what behaviors constitute free speech controversies in the first place.”[23] Justice Kagan’s warnings against using the First Amendment as a sword fall exactly into that category. What are the “better things” the First Amendment is supposed to protect, as we continue to celebrate the freedom of speech as a fundamental liberty, and what are the kinds of things that can be safely tossed aside in the name of progress? We are in the midst of a set of debates in which the putative defenders of free speech, who will still claim to be civil libertarians, will spend a great deal of time and energy explaining why the speech they want to restrict is not really the kind of speech that is of concern to the First Amendment or to any right-thinking person. Justice Alito pointed to the Second Amendment as an example of a right that got pushed into second-tier status in the past. Hopefully we will not see the day in which the Court explains to the people that the freedom of speech is really best understood as a right to be exercised collectively through government officials rather than by individual citizens, but the prospect that the First Amendment will continue to be treated better than the Second Amendment is a small consolation.

Justice Alito has been as vocal as free speech champions in the past about the importance of protecting the speech that we hate. Justices like Louis Brandeis, Hugo Black, William O. Douglas, and William Brennan were unafraid to be too aggressive about deploying the First Amendment as a sword, and they were insistent that freedom of speech meant nothing if we were unwilling to tolerate the expression of ideas that we detested. In a liberal democracy, we are to overcome wrong ideas by persuasion and mobilization, not by suppression and censorship. It is a hard lesson to learn and to remember, and Justice Alito has been eloquent in reminding us of it.

Justice Alito was most direct on this point in his opinion for the Court in Matal v. Tam.[24] The case involved the question of whether the government could refuse to issue a trademark for content that might disparage or bring into contempt any person living or dead. We live in a world in which we are constantly and confidently told that “hate speech is not free speech.” Having identified such a shiny new exception to the First Amendment, many are eager to identify the myriad examples of hate speech that they would like to suppress. The disparagement clause of the trademark statute was a compelling vehicle for (once again) making plain that even hate speech is protected by the First Amendment.

Justice Alito had already staked out his position on such matters when he was serving on the Third Circuit. One of the prominent opinions he wrote during that service came in the case of Saxe v. State College Area School District,[25]  a case involving a harassment policy at a public school. This policy, which a few years earlier would have simply been described a speech code, prohibited any “verbal . . . conduct” that “offends” or “belittles” on the basis of a number of protected characteristics, including “hobbies and values” and “social skills.”[26] Such policies remain all-too-common at schools and universities today, sometimes with language that is barely better than that used by the school in this case. Judge Alito pointed out what should have been obvious,

By prohibiting disparaging speech directed at a person’s “values,” the Policy strikes at the heart of moral and political discourse—the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment. That speech about “values” may offend is not cause for its prohibition, but rather the reason for its protection: “a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” . . . No court or legislature has ever suggested that unwelcome speech directed at another’s “values” may be prohibited under the rubric of anti-discrimination.[27]

It is no accident that the opinion quotes from Texas v. Johnson and Terminiello v. City of Chicago.[28] Neither of those opinions, written by Justices Brennan and Douglas respectively, was likely to be beloved by conservatives at the time it was issued, but both were landmark statements in the battle against the “heckler’s veto.” The ability of the offended mob to enlist the assistance of the state to shut down speech that the mob finds intolerable through the threat of violence is an old problem and one to which the courts were slow to respond. The demand of the mob to silence speakers that offend remains a serious problem throughout civil society, even if the government is somewhat less quick than it once was to cater to the will of the mob. The fact that conservatives are now more likely to be the speaker that offends might make the courts more sensitive to the problem these days. It is surely the case that conservatives will often still find themselves part of the offended audience, and in some circumstances that has certainly encouraged conservatives to embark on their own cancellation campaigns. But one hopes for more principled consistency from the courts than from legislators or media personalities, and Judge Alito’s opinion in Saxe was an appeal to principle that still needs to be heard.

In Matal, Alito returned to this theme. The disparagement clause, like the school’s anti-bullying policy, “offends a bedrock First Amendment principle: Speech may not be banned on the grounds that it expresses ideas that offend.”[29] No matter how much we might not like it, for constitutional purposes, “[g]iving offense is a viewpoint” and the Court has “said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’”[30] The idea that the government “has an interest in preventing speech expressing ideas that offend . . . strikes at the heart of the First Amendment.”[31] The “proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”[32] “Hateful” speech is still free speech.

Dissenting from Speech Protections

Justice Alito is no William O. Douglas, however. Indeed, he was characterized by Neil Siegel as “the least free-speech libertarian on the Roberts Court.”[33] Siegel’s phrase is an interesting one because it would seem to recognize that the Roberts Court is, in general, a free-speech libertarian Court, and so to be the least free-speech libertarian on this Court is still to be quite libertarian. But Siegel quite persuasively points to cases in which Justice Alito seems more reluctant to defend the hateful and offensive speech we hate. Siegel has little to say about Justice Alito’s opinions in those cases, but they are worth unpacking. It is quite notable that Justice Alito has been willing to stand alone among his colleagues in voting to sustain government restrictions on speech, but it is also interesting how he sought to explain those votes.

The first of these is United States v. Stevens,[34] in which the Court struck down a federal statute seeking to prohibit commercial videos of acts of cruelty to animals, most notoriously “crush videos” of animals harmed for sexual titillation. Justice Alito alone tried to salvage what he characterized as a “valuable statute,” but his approach was a fairly limited one.[35] Rather than striking down the statute as a whole, Justice Alito would have preferred the more modest approach of asking whether the statute was unconstitutional as applied to particular the video at issue in the case, reflecting some skepticism about the overbreadth doctrine as a general approach to First Amendment cases. Rather than leaping to striking down the statute as a whole because it might touch on some constitutionally protected content, Justice Alito would have preferred to narrow the statute through interpretation so as to try to limit its scope to videos that are outside the bounds of constitutional protection. Congress in fact responded to the Court’s ruling by passing such a narrow statute, the Animal Crush Video Prohibition Act of 2010, with one circuit court rejecting a constitutional challenge to it.[36] Whether the Court should prefer to strike down overly broad laws in their entirety and leave it to Congress to modify the terms of the statute or to narrow the scope of the statute through interpretation is an interesting and important question, but one that reduces the distance between Justice Alito and his colleagues in the Stevens case.

Justice Alito’s suggested approach would have limited the scope of the original statute “to apply only to depictions involving acts of animal cruelty as defined by applicable state or federal law.”[37] In doing so, Justice Alito would have leaned on New York v. Ferber, which upheld a child pornography statute.[38] Chief Justice Roberts objected to the government seeking to use Ferber to create “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” but he does little to grapple with Justice Alito’s point that Ferber rests on the view that the First Amendment “does not protect violent criminal conduct, even if engaged in for expressive purposes.”[39] A narrow set of applications to films of illegal animal torture that serve no educational or scientific purpose would seem to hew to the logic of Ferber regarding the intimate link between some illegal conduct and the monetization of that conduct through the commercial sale of videos of the criminal acts. Rather than adding new categories of unprotected speech, the Alito dissent in Stevens would seem limited to applying a framework already established by the Court. The application may or may not be a good one, but it is not a radical attack on the Court’s exiting free speech jurisprudence.

A second significant dissent came in Snyder v. Phelps, in which the Court rejected an intentional inflection of emotional distress claim based on the actions of the Westboro Baptist Church at a military funeral.[40] State legislatures have responded to the Court’s decision by creating time, place and manner statutes to keep protestors at a distance from funerals, which have had a more favorable reception in the courts.[41] Of course, in this context the question was not one that could be resolved through a narrowing statutory interpretation. The buffer zone statutory scheme is surely the safer path to take from the perspective of preserving robust protections for protest activity. Allowing the intentional infliction of emotional distress tort in this context would leave open the door to vexatious suits against many other protestors, and the Phelps majority reinforced the broad principle highlighted by Justice Alito in Saxe and Matal that hateful and offensive speech is still constitutionally protected speech.

But again it is worth noting how Justice Alito tries to limit the implications of upholding the suit against the Westboro Baptist Church. He would seek to distinguish between “free and open debate” and a license for “vicious verbal assault.”[42] To do so, Justice Alito reached back to Chaplinsky v. New Hampshire for the proposition that some words “by their very utterance inflict injury” and are not an “essential part of any exposition of ideas.”[43] Though never formally overruled, Chaplinsky is fairly moribund and sits uneasily with the Court’s more recent jurisprudence that recognizes that even hurtful speech can express ideas. More troubling, this argument drawn from Chaplinsky has potentially sweeping implications for a host of hate speech, harassment, and anti-bullying policies of the type that was at issue in Saxe. In Saxe, the school argued that the speech covered by the policy was likewise merely injurious and no essential part of the exposition of ideas, but Judge Alito disagreed. In Snyder, by contrast, Justice Alito characterizes the protestors’ conduct as “outrageous,” “vicious,” and the “brutalization of innocent victims.”[44] If Justice Alito had written for the majority in Snyder, it is not hard to see that many schools would seek shelter under that opinion to defend their harassment policies.

How to reconcile the two opinions? In Snyder, Justice Alito argues that the tort of intentional infliction of emotional distress is already ringed by doctrinal limitations that render it safe under the First Amendment. Perhaps the fact that this is “a very narrow tort”[45] that is difficult to satisfy in practice is sufficient to render it safe in the way that a school anti-bullying policy is not. Certainly the procedural safeguards surrounding the typical school harassment policy are less than robust. Perhaps the speech in question in Snyder is particularly brutalizing. If so, it invites further reflection on how speech that might be beyond the pale can be safely identified and put into policy. Perhaps some weight can be placed on “the fundamental point that funerals are unique events at which special protection against emotional assaults is in order.”[46] That would be a very narrow exception indeed, but it would certainly invite different judges and policymakers to reach different conclusions about what counts as a particularly emotionally sensitive context that should not be a “free-fire zone” for “verbal attacks.” In the few short years since Snyder was handed down, a culture of “safetyism” has taken off.[47] Justice Alito might think a funeral is uniquely a safe space but opening that door would invite many others to look for analogous spaces where they would like to exclude offensive speech. Less appealing is the prospect that Justice Alito simply finds the bereaved parents of a marine killed in the line of duty to be particularly sympathetic victims. Of course, other observers might find other targets of bullying to be quite sympathetic as well. If the boundaries of the First Amendment turn on how sympathetic an offended party might be, then the scope of protected speech is likely to be fairly unpredictable and much more restricted.

Alternatively, we might turn back to Judge Alito’s opinion in Saxe. That opinion gets quite a bit of rhetorical leverage from an unusual feature of the school’s harassment policy. School administrators in that case had cast an extremely wide net and happened to include the critical term “values” within the scope of protected categories. That inclusion made it particularly easy to highlight the ways in which offensive speech could also be speech that advanced or expressed a set of ideas. Perhaps a slightly more carefully crafted bullying policy would satisfy Justice Alito’s sense that some words merely injure and do not usefully convey ideas. If so, the “no hate speech” crowd might have an unlikely ally in Justice Alito if they play their cards right. I have to admit that this would seem to be an unlikely outcome and one that Matal was designed in part to reject, but the Snyder dissent seems to leave the door ajar in ways that I would not prefer.

Siegel might have pointed to the dissent in United States v. Alvarez as well.[48] He did not, and Justice Alito was joined in that dissent by Justice Thomas and Scalia, but here too Justice Alito would allow a statutory restriction on speech to stand. Once again, however, Justice Alito endeavors to argue that upholding the Stolen Valor Act of 2005 would have limited consequences for broader First Amendment protection.[49] Here too Justice Alito thought that statute was a natural extension of earlier doctrine and came with robust safeguards against expansion or abuse. Justice Alito begins with the notion that this case could fit within “a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.”[50] That is not a very promising start. In the age of social media, we are now buffeted by claims that the public sphere is filled with misinformation. There are innumerable proposals to restrict false factual statements that inflict real harm and serve no legitimate interest on matters ranging from election interference and the pandemic to the health of politicians and the prevalence of child trafficking. If Alvarez had come out the other way, it might well have given additional life to legislative proposals to empower government regulators to root out what they regard as misinformation.

Justice Alito attempts to cut off that possibility by pointing to unique features of the “stolen valor” context that would distinguish it from the wider world of damaging false statements. Justice Alito points to five crucial limiting features: the statute applies only to “a narrow category of false representations about objective facts that can almost always be proved or disproved with near certainty”; the act “concerns facts that are squarely within the speaker’s personal knowledge”; knowledge of the falsity of the speech was an element of the offense; the act only applies to the communication of actual facts; and the facts at issue “are highly unlikely to be tied to any particular political or ideological message.”[51] As a consequence, Justice Alito thinks that the suppression of false statements in this context can be readily distinguished from disputed factual claims in scientific, religious, philosophical, political or other social debates where state intervention is likely to cause real harm.[52]

Justice Alito has departed from his colleagues in concurrences as well as dissents. The third case to which Siegel points is Justice Alito’s concurrence in Brown v. Entertainment Merchants Association, in which the Court struck down California’s effort to restrict the sale of violent video games to minors.[53] Here Justice Alito urged the Court to be more cautious about assuming “that new technology is fundamentally the same as some older thing with which we are familiar.”[54] The immersive and interactive nature of video games—and perhaps future virtual reality environments—might make them qualitatively different, and more dangerous, than other media. The justices should at least accept that the jury might still be out on the empirical assumption that fictional violence is essentially harmless regardless of the form in which it is presented and consumed. In the meantime, Justice Alito was willing to join in striking down the law on due process grounds that addressed the chilling effect of a vague law while leaving the core First Amendment issue unresolved. It might not be practically possible to design a statute that could meet those requirements, but Justice Alito was at least open to a law that would reinforce “parental decisionmaking” over the media consumption of their children.[55] This solicitude for parental control over children and caution in the face of technological innovation reflect a conservative sensibility that would at least nibble around the edges of First Amendment jurisprudence.

Separating Out Private Speech

A final set of cases show Justice Alito grappling with how to identify and protect private speech when governmental and private action are entangled. These opinions all evince a civil libertarian commitment to securing a sphere for protected speech by private individuals, but they recognize the challenges of identifying such speech in many modern contexts of sprawling governmental activity and they reflect interesting efforts to think through the rationale for when speech restrictions might be appropriate.

Justice Alito wrote for the Court in Pleasant Grove City v. Summum but wrote for four dissenters in Walker v. Texas Division, Sons of Confederate Veterans.[56] Both required separating governmental speech from private speech. The Court recognized that when the government speaks with its own voice, First Amendment restrictions do not apply and the government can choose to convey some messages but not others. When it comes to messages conveyed on governmental property, however, it is not always evident when the government is speaking and when the government is allowing favored private actors to express themselves. If a city allows activists to paint “Black Lives Matters” on the street but does not allow other activists to similarly paint other messages, is that because the government is playing favorites among private speakers or is it because the government has adopted some street graffiti as its own? In Summum, the Court accepted that the government may “express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message.”[57] The majority thought permanent public monuments displayed in a public park necessarily became governmental speech. Dissenting in Walker, however, Justice Alito thought specialized license plates were distinguishable given the factors at play in Summum. By failing to adequately distinguish governmental from private speech, the dissenters in Walker thought the Court was establishing “a precedent that threatens private speech that government finds displeasing.”[58] For the dissenters in Walker, Summum pointed to such factors as whether the government had long used these means for expressing exclusively governmental messages, whether this type of property had been and could reasonably be used by third parties to express their own messages, and whether a multitude of messages could be reasonably accommodated by the physical space in question.[59] When it came to monuments, the public would necessarily view any message as governmental.[60] Customizable license plates, on the other hand, were tiny portable billboards and could only properly be read as expressing personal messages rather than governmental messages given how they had been used over time.[61] Given the nature of license plates, the government could no more exclude messages it found offensive here than it could in the context of approving trademarks.

This past term, Justice Alito wrote separately in the Boston flag-raising case to emphasize that the Court should not rely on mechanical tests to separate government from non-governmental speech but should focus clearly on the important question of “whether the government is speaking.”[62] Alito is particularly concerned about situations in which “a government claims that speech by one or more private speakers is actually government speech” and as a result using government-speech doctrine “as a cover for censorship.”[63] As he often does, Alito wants judges to focus far more on fact-specific, nuanced judgments and far less on doctrinal tests. Even so, he does provide some guidance of his own. The category of government speech should be restricted to a relatively small class of cases in which the government has specifically authorized an individual to speak on behalf of the government and that person is conveying a governmentally determined message and does so without abridging the speech of others acting in a private capacity.[64]

Justice Alito wrote separately in other cases to express similar nuanced judgments about how best to characterize how the government was affecting the speech environment. In a concurring opinion, Justice Alito thought a buffer zone around an abortion clinic put its thumb on the scale in ways that the majority did not fully appreciate.[65] In a concurring opinion in the “Bong Hits 4 Jesus” case, Justice Alito, while agreeing with the majority that the school could restrict speech that could be perceived as advocating illegal drug use, took pains to reject the government’s argument that public schools might restrict student speech in order to advance its “educational mission.”[66] The “educational mission,” he feared, might creep into “including the inculcation of whatever political and social views are held by the members” of the administration and faculty or public officials.[67] Such an expansive view of the mission of schools would inevitably lead school officials to “suppress speech on political and social issues based on disagreement with the viewpoint expressed.”[68] The “substantial disruption” test of Tinker v. Des Moines Independent Community School District should be narrowly construed to allow school official to head off “a threat of violence.”[69] In the more recent vulgar cheerleader case, Justice Alito seems to recognize a more elaborate set of circumstances in which speech can be restricted in schools.[70] There Justice Alito emphasized even more strongly that “public school students, like all other Americans, have the right to express ‘unpopular’ ideas on public issues, even when those ideas are expressed in language that some find ‘inappropriate’ or ‘hurtful.’”[71] When trying to identify the circumstances in which schools can reasonably restrict student speech, Justice Alito goes beyond his earlier point about preventing violence. The functioning of a school necessitates that teachers be able to “regulate on-premises student speech, including by imposing content-based restrictions in the classroom.”[72] Likewise, a concern with protecting students while out of their parents’ care includes a proper interest in prohibiting “threatening and harassing speech.”[73] But once again, speech “may not be suppressed simply because it expresses ideas that are ‘offensive or disagreeable.’”[74] School authorities bear the same duty as public official generally to prevent rather than facilitate a heckler’s veto.

The entanglement of government and private speakers raised its head again in the context of mandatory fees to support union activities.[75] In critiquing the Court’s earlier decision in Abood v. Detroit Board of Education, Justice Alito took pains to lay out how the Court had expressed concerns about the First Amendment implications of government requirements that worker contribute dues to labor unions.[76] Those concerns got brushed aside in Abood, but a Roberts Court majority was prepared to revisit the earlier concerns (once again Justice Douglas gets a sympathetic hearing in an Alito opinion).[77] The Court in the past had failed to fully appreciate “the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”[78] But now the majority recognized that “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”[79] Hashing out the implications of this invigorated compelled speech doctrine will likely require some further work by the Court, but it is reflective of Justice Alito’s sensitivity to the ways in which majority pressures can impinge on individual conscience and how governmental interventions into society can gradually circumscribe the sphere of private speech unless the implications of those interventions are carefully thought through.

* * *

The ACLU is probably less happy with Justice Alito’s record on free speech now than it was in 2005, but that may say more about the ACLU than Justice Alito. Unlike conservative jurists of old, Justice Alito is not inclined to adopt a broadly deferential posture to government officials who wish to suppress speech that they find threatening to public order. Although a traditional conservative concern with the proper care and socialization of children—and the parental authority to raise children—has affected his approach to some free speech disputes, there is no desire to carve out broad exceptions to First Amendment protections or subordinate individual views to social consensus. A driving force in his free speech opinions is a traditional civil libertarian one—how best to secure the expression of individual speech and belief no matter how unpopular or offensive those ideas might be to the broader community or to government officials and how best to avoid empowering government officials to suppress views with which they disagree. We seem to be entering a new period in which conservative activists and politicians are once again pushing policies targeting disagreeable speech. These initiatives will put new pressures on the conservative justices, including Justice Alito, who may find themselves sympathetic to the sentiments of the censorious policymakers, if not necessarily to their methods. Over the next few years, the Court’s civil libertarian record on free speech will be put to the test.

^* William Nelson Cromwell Professor of Politics, Princeton University; Visiting Fellow, Hoover Institution.

[2] Freedom of Thought Project, The Federalist Society, https://fedsoc.org/projects/freedom-of-thought [https://perma.cc/L97V-9ZW9] (last visited Oct. 26, 2022).

[3] Conservative & Libertarian Legal Scholarship: Constitutional Law, The Federalist Society,  https://fedsoc.org/commentary/publications/conservative-libertarian-legal-scholarship-constitutional-law [https://perma.cc/KDN9-NNRW], (last updated Jun. 19, 2014).

[4] See Wayne Batchis, The Right’s First Amendment (2016); Thomas M. Keck, The Most Activist Supreme Court in History (2004); Steven J. Heyman, The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014).

[5] See Josh Hammer, Common Good Originalism: Our Tradition and Our Path Forward, 44 Harv. J.L. & Pub. Pol’y 917 (2021); Adrian Vermeule, Common Good Constitutionalism (2022).

[6] Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm. on the Judiciary, 109th Cong. 393 (2006).

[7] Id. at 527.

[8] Id. at 527–­28.

[9] Id. at 621.

[10] ACLU Letter to the Senate Judiciary Committee on the Nomination of Samuel A. Alito, Jr. to the United States Supreme Court, American Civil Liberties Union, https://www.aclu.org/letter/aclu-letter-senate-judiciary-committee-nomination-samuel-alito-jr-united-states-supreme-court [https://perma.cc/3TQG-TAH2].

[11] Id.

[12] Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501–02 (2018) (Kagan, J., dissenting).

[13] Justice Samuel Alito, Address at 2020 Federalist Society National Lawyers Convention (Nov. 12, 2022), https://www.rev.com/blog/transcripts/supreme-court-justice-samuel-alito-speech-transcript-to-federalist-society [https://perma.cc/9PP3-YDCK].

[14] Id.

[15] Id.

[16] Gitlow v. New York, 268 U.S. 652, 666 (1925).

[17] Schneider v. New Jersey, 308 U.S. 147, 161 (1939).

[18] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943).

[19] Justice Samuel Alito, Address at 2020 Federalist Society National Lawyers Convention (Nov. 12, 2022), https://www.rev.com/blog/transcripts/supreme-court-justice-samuel-alito-speech-transcript-to-federalist-society [https://perma.cc/9PP3-YDCK].

[20] Id.

[21] Id.

[22] Ken I. Kersch, How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and Freedom of Speech, 8 U. Pa. J. Const. L. 255 (2006).

[23] Id. at 258–259.

[24] 137 S. Ct. 1744, 1751 (2017).

[25] 240 F.3d 200 (3d Cir. 2001).

[26] Id. at 203.

[27] Id. at 210.

[28] Texas v. Johnson, 491 U.S. 397 (1989); Terminiello v. City of Chicago, 337 U.S. 1 (1949).

[29] Tam, 137 S. Ct. at 1751.

[30] Id. at 1763 (quoting Street v. New York, 394 U.S. 576, 592 (1969)).

[31] Tam, 137 S. Ct. at 1764.

[32] Id. (quoting United States v. Schwimmer, 279 U.S. 644, 644 (1929) (Holmes, J., dissenting)).

[33] Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J. F. 164, 172 (2016).

[34] 559 U.S. 460 (2010).

[35] Id. at 482 (Alito, J., dissenting).

[36] 18 U.S.C. § 48; United States v. Richards, 755 F.3d 269 (5th Cir. 2014).

[37] Stevens, 559 U.S. at 486 (Alito, J., dissenting).

[38] New York v. Ferber, 458 U.S. 747 (1982).

[39] Stevens, 559 U.S. at 493 (Alito, J., dissenting).

[40] Snyder v. Phelps, 562 U.S. 443 (2011).

[41] Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012).

[42] Snyder, 562 U.S. at 463 (Alito, J., dissenting).

[43] Id. at 465 (Alito, J., dissenting) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

[44] Snyder, 562 U.S. at 475 (Alito, J., dissenting).

[45] Id. at 464.

[46] Id. at 473.

[47] Greg Lukianoff & Jonathan Haidt, The Coddling of the American Mind (2018); Frank Furedi, What’s Happened to the University? (2017).

[48] United States v. Alvarez, 567 U.S. 709 (2012).

[49] Id. at 739 (Alito, J., dissenting).

[50] Id.

[51] Id. at 740–41.

[52] Id. at 751.

[53] Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011).

[54] Id. at 806 (Alito, J., concurring).

[55] Id. at 815 (Alito, J., concurring).

[56] Pleasant Grove City v. Summum, 555 U.S. 460 (2009); Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015).

[57] Summum, 555 U.S. at 468.

[58] Walker, 576 U.S. at 221 (Alito, J., dissenting).

[59] Id. at 228–29.

[60] Id. at 229.

[61] Id. at 230–31.

[62] Shurtleff v. City of Boston, 142 S. Ct. 1583, 1595 (2022) (Alito, J., concurring).

[63] Id.

[64] Id. at 1598.

[65] McCullen v. Coakley, 573 U.S. 464 (2014).

[66] Morse v. Frederick, 551 U.S. 393, 423 (2007) (Alito, J., concurring).

[67] Id.

[68] Id.

[69] Tinker v. Des Moines Indep. Cmty. School Dist., 393 U.S. 503 (1969).

[70] Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021).

[71] Id. at 2049 (Alito, J., concurring).

[72] Id. at 2050.

[73] Id. at 2052.

[74] Id. at 2055 (internal citations removed).

[75] Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018).

[76] Id. at 2463–64 (discussing Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)).

[77] See Lathrop v. Donohue, 367 U.S. 820, 877 (1961) (Douglas, J., dissenting).

[78] Harris v. Quinn, 573 U.S. 616 (2014).

[79] Janus, 138 S. Ct. at 2463.

Reason and Fiat in the Jurisprudence of Justice Alito – Adrian Vermeule

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Reason and Fiat in the Jurisprudence of Justice Alito

Adrian Vermeule*

How to understand the jurisprudence of a judge or Justice as a coherent whole—coherent at least in aspiration if not execution? The difficulties are formidable because many of the institutional circumstances of judging conspire to promote the ad hoc, the pragmatic in a low sense, and the decision over the reasons for the decision. Judges do not choose their own dockets, and in the case of Justices, they do so only collectively. Thus, they are to a certain extent doomed to write for the occasion, with respect to particular problems not of their choosing, at least in their official capacities. Those problems will often be more or less concrete, and norms of good judicial craft will appropriately discourage expansive essays on legal principles or, even worse, legal theory. From the standpoint of a scholar looking in from the outside, one has to glimpse the Justice’s enduring commitments through a cloud of concrete facts and issues. Often those commitments are most clearly revealed in separate concurrences and dissents—precisely the occasions on which the Justice at issue is not speaking for the Court and not saying what the law is, at least in any immediate sense.

In the face of these difficulties, the approach I will pursue is to try to discern a polarity or antinomy around which Justice Alito’s jurisprudence can be organized and discussed. What gives character to the jurisprudence of a Justice, on this approach, is a tension or a recurring problem that spurs the Justice on to their most characteristic, memorable, and valuable opinions and contributions. A proper antinomy is a standing, unavoidable polarity in law and legal practice such that both poles have their attractions under certain circumstances—“good-bad” is not an antinomy—so that the Justice at issue, at his most characteristic, struggles to reconcile the tensions between the terms of the antinomy, to work out their mutual relationships, and to specify the domains in which each applies.

To illustrate, in the case of Justice Scalia one candidate for an organizing antinomy would be the standing tension in law and legal practice between rules and discretion. (Consider his essay “The Rule of Law as a Law of Rules”^[1] and his pragmatic justification of originalism as a means of constraining judicial discretion,^[2] in sharp contrast to the bewildering variety of jurisprudential justifications for originalism that academics have proliferated in recent years.) In the case of someone like Justice Gorsuch, the organizing antinomy would be liberty and coercion, which underlies his approach to subjects ranging from the nondelegation doctrine and judicial deference to agency legal interpretations, to separation of powers, free speech, and equal protection.

My thesis will be that the best^[3] organizing antinomy around which to structure a discussion of Justice Alito’s jurisprudence is one advanced by the legal theorist Lon Fuller^[4] in a famous essay—or an essay that ought to be more famous than it is—titled “Reason and Fiat in Case Law.”^[5] I will suggest that a number of Justice Alito’s most striking opinions can be profitably understood as grappling with the problem of reconciling reason and fiat in our law, and that this explains at least in part his views about administrative procedure, reviewability, and free speech. When Justice Alito speaks in a more jurisprudential register, he is notably open to Fullerian themes.  Justice Alito is, plausibly, our most Fullerian Justice.

The essay is organized as follows. Section I briefly explains Fuller’s essay, links it to Fuller’s book The Morality of Law, and clarifies the significance of the reason-fiat antinomy for legal theory. Section II addresses four of Alito’s best-known and most powerful opinions: his influential opinion for the Court on Auer deference and administrative procedure in Christopher v. SmithKline Beecham Corp.;^[6] his lone partial dissent in the census case, Department of Commerce v. New York,^[7] arguing that the decision by the Secretary of Commerce to include a citizenship question on the census was unreviewable; and his lone dissents in Snyder v. Phelps,^[8] the funeral picketing case, and United States v. Stevens,^[9] the animal “crush videos” case—in both of which Justice Alito rejected free speech claims upheld by the majority. The brief conclusion suggests that Justice Alito’s jurisprudence contains substantial traces of a Fullerian view of law that sees reason, not merely positive fiat, as constitutive of law’s nature.

I.               Fuller on Reason and Fiat

Fuller’s essay of 1946, published in the Harvard Law Review, can be seen in retrospect to introduce and in some respects anticipate the themes of his famous literary-legal puzzle, The Case of the Speluncean Explorers^[10] from 1949, and indeed his later masterwork of 1964, The Morality of Law,^[11] which argued that law has an intrinsic integrity, an internal morality if you like, that must be respected in order to have a genuine rule of law. The 1946 essay laid out the basic problematic that would structure Fuller’s thinking for the rest of his career—and that, I claim, illuminates Justice Alito’s jurisprudence.

For Fuller, the central antinomy of law was the attempt to reconcile reason and fiat. He imagined “a group of shipwrecked men isolated in some corner of the earth” and a judge appointed by the group to settle their legal disputes. “It would be apparent to him,” wrote Fuller, “that the nature of his task imposed certain limitations on him”:

He would realize that it was his responsibility to see that his decisions were right—right for the group, right in the light of the group’s purposes and the things that its members sought to achieve through common effort. Such a judge would find himself driven into an attempt to discover the natural principles underlying group life, so that his decisions might conform to them. He would properly feel that he, no less than the engineers and carpenters and cooks of the company, was faced with the task of mastering a segment of reality and of discovering and utilizing its regularities for the benefit of the group.

Fuller’s imagined judge would go on to complicate his approach in two ways. First, he would recognize and reconcile the competing claims of reason and fiat by understanding that reason supplies general principles, which must inevitably be given further discretionary specification in concrete rules that could, as far as the principle itself is concerned, take different forms with reasonable bounds. Thus, the general principle that there should at some point be repose from the threat of suit or prosecution implies that the positive law should create statutes of limitations, but there is inevitably some range of choice about what exactly the limitations period should be, for which offenses. Or, in an example of Fuller’s:

From the standpoint of the history of legal theory, it is amusing and instructive, although from another standpoint deeply regrettable, that Fuller here by dint of intellectual effort essentially rediscovered a central concept of classical law: determinatio, or determination, which brings general background principles of law (ius), discoverable by reason, into right relationship to positive law (lex) by seeing lex as a partially discretionary concretization of ius, ordered to and informed by reason. This seemingly accidental rediscovery, however, proved extraordinarily fruitful, as I hope to show shortly.

In a second complication, the Fullerian judge operating in a real, ongoing legal system, as opposed to a thought experiment, recognizes that “the force of established institutions has now become one of the realities the judge must respect in making his decisions. . . . [T]he antinomy of reason and fiat . . . becomes aggravated and compounded, as it were, because established fiat is itself a reality that reason bids us take into account in our reckonings.” Nonetheless, “it is easy to forget that the basic problem of the judicial process remains that of discovering and applying those principles that will best promote the ends men seek to attain by collective action.” Even when interpreting the positive law, in other words, the judge must—at least, or especially, in hard cases, where different sources of positive law are unclear, ambiguous or conflicting—interpret positive law in light of its ordering to the flourishing of the community as such, or put differently, in the light of legal reason.

In his peroration, Fuller argued that under the influence of Holmesian positivism, American law had recently overcommitted to the fiat side of the antinomy, thereby betraying its own classical traditions. He therefore called for a more rounded view of the law, one that embraced the standing tension between the two poles:

If there is any need, it is to get rid of the lingering traces of a philosophy that I like to think is essentially alien to the American spirit. This is the philosophy which by depriving law and ethics of the reason branch of the antinomy of reason and fiat leaves them with only the branch of fiat to stand on. . . . [A] return to what I have called the whole view of law will not only help in leading us toward a right solution of our problems, but will make for the spirit of compromise and tolerance without which democratic society is impossible.

Fuller’s essay introduced crucial themes that would appear in ever more elaborate forms in his later writings—and that, as we will see, suffuse Justice Alito’s jurisprudence. For Fuller, the true spirit of American law, at least until the advent of Holmesianism, is that law is not merely sovereign command, nor rules posited by those authorized by social convention to posit rules, nor a prediction of what the courts will do in fact. Rather, law is in some crucial way oriented towards communal ends and social purposes; for Fuller, this ordering of law to the flourishing of the community is just legal reason. “There are external criteria, found in the conditions required for successful group living, that furnish some standard against which the rightness of [the judge’s] decisions should be measured.” Reason in this sense is intrinsic to law’s nature, and the application of reason is constitutive of the craft of judging.

The point sweeps well beyond judges, however. For any official, such as a legislator or an administrative agency, or indeed for any citizen, to advance a legal claim is to advance a claim at least partially founded on reason, rather than subjective preference or private whim. A corollary, as we will see, is that (on Fuller’s view) in domains where the element of complex, ill-defined policy tradeoffs and hence willed choice between competing values becomes predominant, to that very extent we are no longer dealing with distinctively legal claims. Where this is so, the judge ought to recognize that the domain lies beyond or outside the limits of the legal rationality that it is the judge’s office to apply.

II.             Justice Alito’s opinions

Let me now turn to illustrating these themes in Justice Alito’s jurisprudence. What follows is inevitably selective. I will briskly examine four famous Alito opinions to illustrate the reason-fiat polarity, the internal morality of law and of law’s limits, and the obligation of legal rationality for all participants in the legal system. Of these four, only one is a majority opinion, while the other three are lone dissents. As I noted at the outset, the majority opinion and the separate opinion (whether concurrence or dissent) are essentially different genres, with dissents in particular allowing far more scope for the individual Justice’s thinking, style, and characteristic concerns to emerge. I begin with two opinions on administrative law, one on administrative procedure and one on reviewability, then turn to rights of free speech.

A.    Administrative Procedure and the Rational Morality of Law

Let me begin with the most transparently Fullerian of Justice Alito’s best-known opinions: his highly influential 2012 opinion for the Court in Christopher v. SmithKline Beecham Corp.^[12] (for short, “SmithKline”). Although devoted to a seemingly dry issue of administrative procedure—whether courts should defer under the earlier Auer v. Robbins^[13] decision to the Department of Labor’s interpretation of its own regulation, an interpretation offered in amicus briefs—SmithKline had a double importance. In immediate terms, SmithKline led to the partial retrenchment of Auer deference in Kisor v. Wilkie,^[14] an opinion by Justice Kagan (in part for the Court, in part for a plurality) that limited Auer in order to save it, and did so by elaborating on the limits that Justice Alito had identified in SmithKline. More broadly, SmithKline inaugurated, in important respects, the current era of the rethinking of the administrative state, its proper domain and its limits, on the part of the Court’s more conservative Justices—“conservative” somehow defined.

Justice Alito’s opinion for the Court begins by clarifying and consolidating limits on Auer deference in a list that the Kisor plurality would later adopt more or less wholesale. Among these, the opinion identifies two as dispositive in the case at hand: agency consideration of the reliance interests of regulated parties, and the need for “thorough consideration” of agency interpretations.^[15] As to the first, SmithKline identifies the key issue as one of de facto retroactivity: to defer to the interpretation at hand under the circumstances of the case would “impose potentially massive liability on respondent for conduct that occurred well before that interpretation was announced. . . . [This] would seriously undermine the principle that agencies should provide regulated parties ‘fair warning of the conduct [a regulation] prohibits or requires’” and threaten “unfair surprise.”^[16] As to the second, the agency’s interpretation lacked “the hallmarks of thorough consideration” because it had neither gone through the standard notice-and-comment process for binding rules, nor been consistently defended by the Department over time. Accordingly, the Court proceeded to construe the relevant regulation and underlying statutes for itself, without deference to the agency interpretation, which it ultimately rejected.

Importantly, Justice Alito’s opinion shows no anxiety about rooting its restrictions on Auer in any particular positive source of law. In this respect it follows on some of the foundational opinions of administrative law jurisprudence, such as the Arizona Grocery decision,^[17] which announced—with no citation to positive law of any kind—that agencies are bound by their own legislative rules.^[18] Justice Alito’s opinion cites precedents, but largely treats its central requirements of considering reliance interests and reasoned agency deliberation as general background principles of law broadly understood. And the point of those background principles is to ensure that agencies, as the price of deference, have given full rational consideration to the interests of affected parties and generally to all aspects of their decision—to ensure, in other words, that an administrative determinatio of binding legal regulations partakes of reason as well as fiat.

All this is Fullerian both in concept and in detail. At the conceptual level, we have seen that a central point of Fuller’s essay is to explain that the formulation of law by public bodies is always a concrete specification of general rational principles—an exercise that is partly reason, partly fiat. Moreover, Fuller’s major work, The Morality of Law, argued that law’s intrinsic procedural morality—referring here to “morality” not as a superimposed ethics, but as the internal logic of legality needed to make law work well, as law, in a well-ordered community—embodied a continual adjustment of reason and fiat. In this sense, the book represents a central application of the master antinomy laid out in Fuller’s earlier essay.

At the level of legal detail, Fuller advanced eight procedural criteria of legal rationality,^[19] principles that fit well with the restrictions on Auer deference laid out in SmithKline. Reliance interests imply that retroactivity is disfavored in the creation and elaboration of legal rules, Fuller argued, although not necessarily barred outright.^[20] Reasoned consideration of the point of rules on the part of the rulemakers, and their rational intelligibility to law’s subjects, is part and parcel of their status as law. As Cass Sunstein and I have argued elsewhere,^[21] much of the Court’s recent administrative law jurisprudence can be seen as an essentially Fullerian effort to establish a version of the rule of law governing, constraining, and constituting the administrative state, a rule of law grounded in general principles of legal rationality as well as in positive laws such as the Administrative Procedure Act (APA). Justice Alito’s opinion in SmithKline is an exemplar and forerunner of this recent effort.

B.     Reviewability and Law’s Limits

Fuller’s internal morality of law was by no means an imperialist account of law’s dominion. Fuller argued that the morality of law generally, and in particular the requirements of rationality in adjudication, were certainly not unbounded or applicable to all subjects on which government might decide. On the contrary, Fuller argued clearly and vehemently in The Morality of Law that there was a large and important domain within which government might make decisions not subject to legal morality and adjudicative rationality.^[22] As examples, he offered battlefield command; the negotiation of treaties by the President;^[23] managerial decisions, such as the building of a hydroelectric plant; and essentially economic decisions allocating resources under conditions of scarcity, such as government spending on competing programs^[24] and licensing of broadcast spectrum. Economic allocation, Fuller thought, is generally not susceptible of being conducted through adjudicative forms,^[25] both because there are multiple, competing criteria of allocation (should a license go to the station that serves the largest audience? To the one that airs the highest-quality programming? To the one that is most financially viable?) and because the criteria themselves are ill-defined (what exactly counts as “high-quality programming” anyway?).

Current law maps imperfectly on to Fuller’s examples. Certain aspects of military command in the field have been legalized, for example, and allocative licensing is by no means generally exempt from judicial review. But there are at least two strands of doctrine that instantiate Fuller’s concerns with the domain-restriction of legal morality and adjudicative rationality.

In the older strand, the Court examined statutory obligations that Congress had thrust upon it to ensure that those obligations entrusted the federal courts with tasks that were inherently fit subjects for the exercise of the judicial power under Article III. A classic example does in fact involve radio licensing, a task which Congress tried initially to assign to the legislative courts of the District of Columbia under the Radio Act of 1927, with Supreme Court review, only to have the Supreme Court declare that the task was essentially “administrative” and thus lay beyond the scope of the Article III judicial power even by way of review.^[26]

Today, similar concerns animate reviewability doctrine, under the APA’s exception to judicial review for issues that are “committed to agency discretion by law.”^[27] That doctrine itself has two major sub-headings. One is that agency action is committed to agency discretion where there is “no law to apply.”^[28] As there is almost always some law to apply, however—both the APA’s prohibition on arbitrary and capricious agency action,^[29] and, as Justice Scalia noted, “the fundamental constraint that the decision must be taken in order to further a public purpose rather than a purely private interest”^[30]—the doctrine has often paid lip service to the “no law to apply” test but then taken a different tack. Instead it has developed (as Justice Scalia also put it) a “common law of judicial review of agency action—a body of jurisprudence that had marked out, with more or less precision, certain issues and certain areas that were beyond the range of judicial review.”^[31] This body of jurisprudence is Fullerian in concept if not wholly in detail; it asks, in essence, whether the relevant issues and areas are fit subjects for the exercise of legal reasoning and distinctively adjudicative rationality, or instead require a type of political and administrative decisionmaking not subject to “judicially manageable standards”—the sort of distinctively legal principles and reasons that courts are duty-bound to apply.

A powerful example of this second strand of reviewability doctrine appears in Justice Alito’s lone dissent in the census case, Department of Commerce v. New York.^[32] After carefully parsing the relevant statutes under the “no law to apply” test, Justice Alito turned to two key points. First, there was no relevant tradition of judicial review for the census and indeed an unbroken tradition to the contrary “that reaches back two centuries,” a historical gloss indicating the subject lay beyond the adjudicative authority of the courts.^[33] Second, “courts reviewing decisions about the form and content of the census,” Justice Alito wrote, “would inevitably be drawn into second-guessing the Secretary’s assessment of complicated policy tradeoffs, [an] indicator of general unsuitability for judicial review.”^[34] On this view, the “law” that commits subjects to agency discretion is not only, and perhaps not primarily, positive statutory law, but also tradition and background principles that limit the domain of adjudicative rationality.

C.    Free Speech in a Classical Register

I said above that insofar as reason is at least partly constitutive of law’s rationality, its obligations bind legislators and citizens as well as judges. Insofar as one advances a legal claim or seeks to exercise a legal right, that claim must participate in reason, not merely in the fiat of subjective desire, and must be expressed in rational ways for the ultimate benefit of the community. Fuller noted that this was the longstanding spirit of American law, and in this he was correct. The classical law of free speech in the United States reflects exactly this conception of law, and Justice Alito’s free speech jurisprudence shows real traces of this conception. This explains why Justice Alito has been, in important cases, out of step with a number of his colleagues’ opinions that are less deferential to legislative determinations, more libertarian, and more inclined to see valid speech as the expression of subjective, willful preferences.

Our current free speech law, with its familiar basic structure of content neutrality and viewpoint neutrality subject to a limited class of exceptions (defamation, fighting words, time place and manner restrictions, and so forth) is in critical respects a creation of the 1960s and afterwards. Recent scholarship has uncovered how radically different was the classical American approach to free speech—an approach that also captures the original understanding, as it was prevalent before, during, and well after the founding era and right through the mid-20th century.^[35]

For our purposes, the classical law of free speech had two major features. First, it recognized broad scope for content-based legislative determinations of the boundaries of reasonable speech, ordered to the common good.^[36] Second, the responsibility to participate in the system of free speech in a rational way lay upon the speaker as well. Courts distinguished between, on the one hand, prudent, responsible speech on public issues, and on the other, irrational and irresponsible pseudo-speech. Thus, for example, “[o]pinions seriously, temperately, and argumentatively expressed” counted as protected religious speech, but “despiteful railings” and “malicious revil[ing]“ did not.^[37]

It is easy to see Justice Alito’s lone dissent in Snyder v. Phelps^[38] as animated by similar concerns. Notoriously, the case arose because members of the Westboro Baptist Church picketed the funeral of a fallen soldier, Marine Lance Corporal Matthew Snyder, holding signs that made model contributions to reasoned public discourse, such as “Thank God for Dead Soldiers.” Snyder’s father brought tort claims, principally intentional infliction of emotional distress and intrusion upon seclusion, against the Westboro group, but the Court declared the suit barred by free speech because it was speech in a public place on matters of public concern.

Justice Alito’s dissent was, by his restrained standards, incandescent. “Our profound national commitment to free and open debate,” he wrote, “is not a license for . . . vicious verbal assault . . . . [The Westboro Baptists] approached as closely as they could without trespassing, and launched a malevolent verbal attack.”^[39] That the wrongdoers were seeking public attention was, for Justice Alito, an aggravating rather than mitigating factor: “Wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.”^[40] Overall, “[the Westboro Baptists’] outrageous conduct caused petitioner great injury . . . . In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims.”^[41]

The classicism of these lines is striking and unmistakable. Not every sound that is emitted from the mouth, and not every phrase written on a placard, counts as “speech” in the constitutional sense, especially not speech on matters of public concern. Rather genuine speech on matters of public concern, as conceived in the Snyder v. Phelps dissent, has a rational character, rationally expressed, and is motivated in the right, public-spirited way. The “speech” of the Westboro Baptists was in fact pseudo-speech, a vile simulacrum of responsible participation in public discourse—the modern equivalent of “despiteful railing” and “malicious reviling.”

Similar themes had appeared in another of Justice Alito’s lone dissents the previous Term, in another now-notorious decision: United States v. Stevens,^[42] the “animal crush videos” case. The Court invalidated the statute on overbreadth grounds, but for Justice Alito, the crush videos embodied no genuine “speech” worth protecting from chill through overbreadth doctrine. “The First Amendment protects freedom of speech,” he wrote, “but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct.”^[43] Analogizing the videos to child pornography, whose prohibition the Court had previously upheld,^[44] Justice Alito saw the films as a form of recorded brutality, rather than any sort of contribution to public discourse, arguing that “the harm caused by the underlying crimes vastly outweighs any minimal value that the depictions might conceivably be thought to possess.”^[45]

There is no doubt that in these twin opinions, at least, Justice Alito has been out of step with his colleagues. It is a great and standing irony of our current free speech law that while it is, in large part, a product of non-originalist Justices writing in the 1960s and after, it is taken to the most sweeping possible extremes by Justices who consider themselves originalists. The recent scholarship to which I have referred has shown that the current state of free speech law is far more libertarian, far less deferential to legislative judgments about the social value of speech, and far more hospitable to malicious, irrational, and morally perverse pseudo-speech than any conception held by the founding generation or for many generations afterwards, well past the ratification of the Fourteenth Amendment and into the 20th century.^[46] As Fuller would put it, the animating spirit of the classical American approach to free speech, which was also indisputably the original conception of free speech, was entirely different than the post-1960s conception.

Although it would take me too far afield to say more on this topic, I believe that the gap between the current state of free speech jurisprudence and doctrine, on the one hand, and the original understanding on the other, yawns so widely that the situation is intrinsically unstable. Free speech law is ripe for an originalist reevaluation. At a minimum, it is awkward to explain why exactly we have seen attempts at sweeping originalist reevaluations of the administrative state, of the Second Amendment, and of constitutional protection for private property, but not of free speech law, where the gap between current and original conceptions is at least as wide. If the situation is intrinsically unstable, it follows that it may not remain so forever. Although Justice Alito is sometimes out of step with his colleagues on free speech, the future will render the final judgment, and that judgment may just be so much the worse for his colleagues.

III.       Conclusion: The Most Fullerian Justice

If it seems surprising that a mid-20th century legal scholar like Fuller would provide the best lens through which to understand the jurisprudence of a Justice of the early 21st century, it shouldn’t be. There is nothing new under the sun, in law and legal theory as elsewhere. Fuller is significant because his work revived, after the Second World War, the mainstream tradition of American law that had been partly lost to view during the triumph of Holmesian positivism. Behind that classical American tradition, and in continuity with it, stands the classical legal tradition of Europe generally, including the English common law tradition as a special case and local variant.^[47]

In this tradition, law is more than (although it is not less than) positive fiat. It also includes general background principles of both procedural and substantive legality, not necessarily or essentially embodied in any positive source of law; an account of the limits of distinctively legal rationality; respect for rights, when but only when ordered to the well-being of the community; an account not only of the rights but also of the duties of the citizen, as a public-spirited participant in a rationally ordered legal system; and, most generally, an account of law as both reason and fiat, with the latter supplying determinatio or specification to the majestic generalities of the former, but always informed by reason.

I have tried to suggest, however briefly and selectively, that Justice Alito’s jurisprudence draws upon something like this conception. Nothing in this account requires that Justice Alito be immersed in Fuller’s own writings or anything of that sort. Rather both are drawing water from the same well, the deep sources of American law and legal theory, what Fuller called the “spirit” of the American legal tradition. In this sense, the Fullerian strands of Justice Alito’s jurisprudence represent the best and most characteristic parts of the Justice’s work and the best of our law—“law” broadly understood.

* Ralph S. Tyler Professor of Constitutional Law, Harvard Law School; ACUS Council. This paper was presented at a conference in honor of Justice Alito, March 23–24, 2022, in Washington D.C. Thanks to Rishabh Bhandari and Conor Casey for helpful comments.

^[1] Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).

^[2] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1988–1989).

^[3] ”Best” here involves dimensions of both justification and fit; it requires placing Justice Alito’s jurisprudence in a coherent, attractive light, consistent with the data given to us by his opinions. I limit myself here to Justice Alito’s judicial output, bracketing his occasional speeches in extrajudicial fora.

^[4] 1902–1978; Professor of law at Harvard Law School from 1948 to 1972.

^[5] Lon L. Fuller, Reason and Fiat in Case Law, 59 Harv. L. Rev. 376 (1946). As the essay is short, I will forego the usual point cites in the quotations that follow.

^[6] 567 U.S. 142 (2012).

^[7] 139 S. Ct. 2551 (2019).

^[8] 562 U.S. 443 (2011).

^[9] 559 U.S. 460 (2010).

^[10] Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949).

^[11] Lon L. Fuller, The Morality of Law (Revised ed., Yale Univ. Press 1965).

^[12] 567 U.S. 142 (2012).

^[13] 519 U.S. 452 (1997).

^[14] 139 S. Ct. 2400 (2019).

^[15] SmithKline, 567 U.S. at 159.

^[16] Id. at 156 (internal citation and quotation marks omitted).

^[17] Ariz. Grocery Co. v. Atchison, T. & S.F. Ry. Co., 284 U.S. 370 (1932).

^[18] See id. at 389 (“Where, as in this case, the Commission has made an order having a dual aspect, it may not in a subsequent proceeding, acting, in its quasi-judicial capacity, ignore its own pronouncement promulgated in its quasi-legislative capacity and retroactively repeal its own enactment as to the reasonableness of the rate it has prescribed.”). For this crucial proposition, the Court adduced no authority.

^[19] Fuller, supra note 11, at 33 et seq.

^[20] Id. at 51 et seq.

^[21] Cass R. Sunstein and Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State (Harvard Univ. Press 2020).

^[22] Fuller, supra note 11, at 168 et seq.

^[23] Cf. Chicago & S. Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948).

^[24] Cf. Lincoln v. Vigil, 508 U.S. 182 (1993).

^[25] Fuller, supra note 11, at 171–73.

^[26] Fed. Radio Comm’n v. Gen. Elec. Co., 281 U.S. 464 (1930).

^[27] 5 U.S.C. § 701(a)(2).

^[28] Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971).

^[29] 5 U.S.C. § 706; Ron Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689 (1990).

^[30] Webster v. Doe, 486 U.S. 592, 608 (1988) (Scalia, J., dissenting).

^[31] Id. at 608 (Scalia, J., dissenting) (internal citation and quotation omitted).

^[32] 139 S. Ct. 2551 (2019) (Alito, J., concurring in part and dissenting in part).

^[33] Id. at 2604.

^[34] Id. at 2605.

^[35] See, e.g., Jud Campbell, The Emergence of Neutrality, 131 Yale L.J. 861 (2022) (“For most of American history, the governing paradigm of expressive freedom was one of limited toleration, focused on protecting speech within socially defined boundaries. The modern embrace of content and viewpoint neutrality, it turns out, occurred only in the 1960s . . . . In contrast to the modern focus on neutrality, the older approach did not preclude legislative or judicial assessments of communicative harms.”).

^[36] See Jud Campbell, Natural Rights and the First Amendment, 127 Yale. L.J. 246, 259 (2017) (“As a general matter, natural rights did not impose fixed limitations on governmental authority. Rather, Founding Era constitutionalism allowed for restrictions of natural liberty to promote the public good­—generally defined as the good of the society as a whole. . . . And no evidence indicates that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare.”).

^[37] Updegraph v. Commonwealth, 11 Serg. & Rawle 394, 400 (Pa. 1824). For the background history from the founding era through the mid-20th century, see Note, Blasphemy and the Original Meaning of the First Amendment, 135 Harv. L. Rev. 689 (2021); T.A.D, Originalist Blasphemy, Ius & Iustitium (Jan. 3, 2022), https://iusetiustitium.com/originalist-blasphemy/ [https://perma.cc/A59R-SSR4].

^[38] 562 U.S. 443 (2011).

^[39] Id. at 463 (Alito, J., dissenting).

^[40] Id. at 472.

^[41] Id. at 475.

^[42] 559 U.S. 460 (2010).

^[43] Id. at 493 (Alito, J., dissenting).

^[44] See New York v. Ferber, 458 U.S. 747 (1982).

^[45] Stevens, 559 U.S. at 495 (Alito, J., dissenting).

^[46] As late as 1907, well past the ratification of the 14th Amendment, the Court held that the First Amendment prohibits prior restraints on speech but permits “the subsequent punishment of such [speech] as may be deemed contrary to the public welfare.” Patterson v. Colorado, 205 U.S. 454, 462 (1907).

^[47] See Adrian Vermeule, Common Good Constitutionalism (Polity Books 2022); Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J.L. & Pub. Pol’y 103 (2022).

Samuel Alito’s Conservatism—Burkean and American – Adam J. White

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Samuel Alito’s Conservatism—Burkean and American

Adam J. White^*

“I am and always have been a conservative,” Samuel Alito wrote in 1985, “and an adherent to the same philosophical views that I believe are central to this Administration.” He was referring to the Reagan Administration, where he served in the Justice Department. But as he recognized, to call oneself a “conservative” is to start an explanation, not finish one. “It is obviously very difficult to summarize a set of political views in a sentence,” he warned, before offering a few paragraphs.[1]

A quarter-century later, Alito found himself reflecting once more on conservatism. In 2012, the Columbia Law School hosted a conference on “Burkean Constitutionalism,” after the conservative Weekly Standard had surveyed Alito’s writings and background and declared him “the Burkean Justice.”[2] Alito keynoted the Columbia conference, and he took the “Burkean” label as a compliment—but as in 1985, he added a word of caution.

“Burkean constitutionalism” means different things to different people, he explained. And its application to America’s particular constitutional institutions—including the work of American judges—is not so self-evident.[3]

Alito was rightly wary of defining either conservatism or Burkeanism with exaggerated specificity. Today, of course, “conservatism” might refer to any part of the broad collection of disparate and often conflicting political agendas on the post-Trump right. But American conservatism has never been monolithic; its history is a story of argument.[4] In 1965, when conservatism was increasingly well defined by William F. Buckley Jr.’s National Review, Buckley himself quipped:

I confess that I know who is a conservative less surely than I know who is a Liberal. Blindfold me, spin me about like a top, and I will walk up to the single Liberal in the room without zig or zag, and find him even if he is hiding behind the flower pot. I am tempted to try to develop an equally sure nose for the conservative, but I am deterred by the knowledge that conservatives, under the stress of our times, have had to invite all kinds of people into their ranks, to help with the job at hand . . . .[5]

The next decades simplified matters considerably: political conservatism came to be defined by President Reagan’s agenda, and legal conservatism by Justice Scalia’s methodology.

But now, after an era of ideological and methodological consolidation, old questions about conservatism are new again. Yet as conservative lawyers and judges consider whether constitutional law should move in more libertarian or traditionalistic directions,[6] Justice Alito does not fit easily into such categories. In an era of judicial and executive power, he is wary of concentrated power; in an era of jurisprudential theories, he is rooted in American experience. These are both well worth conserving.

I.               Samuel Alito and the Modern Conservative Movement(s)

A.    The Education of Samuel Alito

“I am who I am in the first place because of my parents and because of the things that they taught me,” Justice Alito told the Senate Judiciary Committee in 2006, “and I know from my own experience as a parent that parents probably teach most powerfully not through their words but through their deeds.”[7]

He introduced himself to the Senators, and to America, by describing his parents. His mother was a first-generation American, a teacher who, with her husband, “instilled” their children with “a deep love of learning.”[8] Alito’s father came to America as an infant, grew up in poverty, suffered the loss of his own mother, yet attended college thanks to the generous intervention of “a kind person in the Trenton area.”[9] After serving in World War II, Samuel Alito Sr. eventually “worked . . . for many years in a nonpartisan position for the New Jersey Legislature, which was an institution that he revered.”[10]

“His story is a story that is typical of a lot of Americans, both back in his day and today,” Alito recalled fondly, “and it is the story, as far as I can see it, about the opportunities that our country offers and also about the need for fairness and about hard work and perseverance and the power of a small good deed.”[11]

In his opening remarks to the Senators, Alito emphasized two more things. First, his community:

I got here in part because of the community in which I grew up. It was a warm but definitely an unpretentious, down-to-earth community. . . . I have happy memories and strong memories of those days and good memories of the good sense and the decency of my friends and my neighbors.[12]

And second, his profession—or at least his professional mentor, Judge Leonard Garth of the Third Circuit.

I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized open-mindedness and fairness. He read the record in detail in every single case that came before me. He insisted on scrupulously following precedents . . . . He taught all of his law clerks that every case has to be decided on an individual basis, and he really didn’t have much use for any grand theories.[13]

The formative moment in the young Alito’s civic education may have been one that involved all three of those things: family, community, and the courts. After the Supreme Court broadly announced a constitutional rule of “one person, one vote” for legislative districts in Reynolds v. Sims,[14] the New Jersey state legislature was left to actually implement the Court’s theory. And the legislators, in turn, left the task to Samuel Alito Sr., who labored to draw new district lines that could comply in fact with the Court’s doctrine.

Justice Alito recalled this story to senators in the run-up to his confirmation hearing,[15] and in a 2015 interview with Bill Kristol:

I remember lying in bed listening to this clanking of a mechanical—it’s hard to believe—a mechanical adding machine. He was downstairs, and he was drawing maps to try to produce districts for the Senate and for the Assembly that were as close as possible to equal in population just using a mechanical adding machine.[16]

The sometimes vast gulf between sweeping generalities of Supreme Court opinions and the concrete difficulty of their implementation was apparent in the Alito home.

It was also apparent to Alexander Bickel. In The Supreme Court and the Idea of Progress, he recognized Reynolds as the Warren Court’s “main statement” of a theory of constitutional democracy that the Court would impose on the states at the expense of society’s counter-majoritarian institutions (except for the Court itself, of course).[17] The Court was promoting majoritarianism, and “[m]ajoritarianism is heady stuff,” Bickel noted.[18] But whether the Court knew it or not, such doctrinal sloganeering tends to carry much further and much faster than the justices intended. “It is, in truth, a tide flowing with the swiftness of a slogan,” he warned.[19] “The tide is apt to sweep over all institutions, seeking its level everywhere. Now that the Warren Court has released it again, it bids fair, for example, to engulf the Electoral College . . . . The tide could well engulf the Court itself also.”[20]

Two centuries earlier, James Madison had seen the danger of “theoretic politicians” who would impose constitutional abstractions on the people, but the Warren Court was not heeding his warning.[21] In his own time, Bickel longed for “a less confident reliance on the intuitive judicial capacity to identify the course of progress.” A few years later, Bickel would recharacterize his approach by explicit reference to Edmund Burke;[22] but even before that, in The Supreme Court and the Idea of Progress, Bickel made his points in palpably Burkean terms:

More careful analysis of the realities on which it was imposing its law, and an appreciation of historical truth, with all its uncertainties, in lieu of a recital of selected historical slogans, would long since have rendered the Warren Court wary of its one-man, one vote simplicities . . . . The judicial process is too principle-prone and too principle-bound—it has to be, there is no other justification or explanation for the role it plays. It is also too remote from conditions, and deals, case by case, with too narrow a slice of reality.[23]

Bickel’s criticism of the later Warren Court, from Reynolds v. Sims’s one-man-one-vote to Griswold v. Connecticut’s sweeping right to privacy,[24] stirred young Sam Alito, who already was attracted to notions of judicial self-restraint. He recalled decades later, in his Supreme Court confirmation hearing, that:

From Bickel’s writings, Alito learned the virtue of prudence. “Professor Bickel made the argument that the Court had taken the one person/one vote principle too far,” he told the Senators, “and I know my father had said that although he thought it was a good idea, the idea of trying to get the districts to be exactly equal in population at the expense of looking at other factors, such as the shape of the district and respecting county lines or municipal lines, was a bad idea.”[26] Through Bickel, Alito saw that the Court’s work involved prudential, institutional questions:

Bickel’s book inspired Alito to go to Yale Law School.[28] “[A]nd I was looking forward to taking some courses from him,” Alito recalled years later in an interview, “but unfortunately he became ill . . . within the year when I started at Yale. So I never did take a course from him.”[29] For Constitutional Law he was assigned to Charles Reich’s small class, which Alito tried to escape with a transfer to Robert Bork’s class, but the school denied his request. “So I’m self-taught.”[30]

After graduating from law school in 1975, he clerked for Judge Garth and then served as an Assistant U.S. Attorney in New Jersey for several years. In 1981 he departed for Washington, to join the new Reagan Administration—the culmination of one conservative movement, and the beginning of another.

B.      The Evolution of American Political Conservatism

Upon President Ronald Reagan’s election, George F. Will wrote that “before there was Ronald Reagan, there was Barry Goldwater, and before there was Barry Goldwater there was National Review, and before there was National Review there was Bill Buckley with a spark in his mind, and the spark in 1980 has become a conflagration.”[31]

But between Buckley’s spark and Reagan’s conflagration, conservatism changed significantly. Beginning as a countermajoritarian and intellectual movement, it eventually became a majoritarian and populist one. And this evolution occurred during Alito’s formative years.

1.     From Elitism to Populism

Shortly before Buckley founded National Review, Russell Kirk wrote The Conservative Mind (1955), a groundbreaking account of American conservatism that attempted to root conservatism in Edmund Burke. As Matthew Continetti recounts in his own newly published history of the American right, Kirk’s magnum opus “gave conservatives an identity, an intellectual genealogy, and a point of view.”[32]

Yet Kirk’s conservative genealogy and identity were largely disconnected from the American founding. As Continetti explains, “Kirk assimilated the American Right into a broader Anglo-American tradition,” minimizing “the differences between Burkean, European-style conservatism, with its preference for monarchy, aristocracy, and established churches, and American constitutionalism, with its belief in enumerated powers, individual natural rights, and religious pluralism.” Kirk’s account “defended the Constitution, but as a historical artifact rather than as the political structure designed by the Founders to instantiate the principles of the Declaration of Independence.”[33]

Buckley’s own National Review began in a somewhat similarly elitist spirit, both in its message and in its personnel. But this soon changed. From Goldwater’s presidential campaign, to Buckley’s own mayoral campaign and surprisingly popular Firing Line television show, to Reagan’s successful gubernatorial campaign and its ripple effects through the Republican Party in an era of broader social and political upheaval, conservatives suddenly had to grapple with the prospects—and risks—of populism.

Buckley “was an ambivalent populist,” Continetti writes, but “the ‘establishment’ that National Review poked, prodded, and lampooned was liberal in outlook,”[34] while populist conservatism ascended. He would denounce the populist right’s worst impulses, such as the John Birch Society and George Wallace.[35] But he would also take aim at elite academic institutions and declare, “I am myself obliged to confess that I would prefer to live in a society governed by the first two thousand names in the Garden City telephone directory, than in a society governed by the two thousand faculty members of Harvard University.”[36]

Buckley’s phonebook quip became legendary, but the punchline overshadowed his explanation of the fundamental challenge facing conservatives: how to embrace both populism and institutionalism, but in their proper proportions, and for the right reasons. He had particular reasons for populism in matters of higher education:

Not, heaven knows, because I hold lightly the brainpower or knowledge or even the affability of the Harvard faculty, but because I greatly fear intellectual arrogance, and that is a distinguishing characteristic of the university which refuses to accept any common premise. In the deliberations of two thousand citizens of Garden City I think one would discern a respect for the laws of God and for the wisdom of our ancestors which would not equally characterize the deliberations of Harvard professors—who, to the extent that they believe in God, tend to believe He made some terrible mistakes which they would undertake to rectify; and when they speak of the wisdom of our ancestors, it is with the kind of pride we exhibit in talking about the accomplishments of our children at school.[37]

Conservatism’s cautious embrace of populism—on education, on anticommunism, on crime, on the Supreme Court, and more—proved to be its political turning point.

And this era happened to coincide with Samuel Alito’s own political and legal education. In his 1985 job application to OLC, he wrote that “I first became interested in government and politics during the 1960s,” and “the greatest influences on my views were the writings of William F. Buckley, Jr., the National Review, and Barry Goldwater’s 1964 campaign.”[38]

Similarly, as urban crime and political violence spurred conservatives to prioritize law and order in the late 1960s, those political and ideological arguments resonated with what Alito was seeing in his own hometown, Trenton. “The city never recovered” from 1968’s riots, he told the American Spectator in 2014. “It’s sad. The people living in the city were the ones who were plagued by crime[.]”[39]

2.     From Congress to the Executive

In this formative period from the 1960s through the 1970s, American political conservatives changed in other important ways, too. One underappreciated but crucial change involved conservatives’ view of executive power. Because the modern conservative political movement emerged in the aftermath of FDR’s New Deal, it initially favored Congress over the presidency.

This was emphatically so in National Review, where editor James Burnham—whom Buckley later called, “the dominant intellectual influence in the development of this journal”[40]—dedicated a book to Congress’s central place in the constitutional order: Congress and the American Tradition (1959). Another of National Review’s founding intellects, Willmoore Kendall, called for a restoration of legislative primacy against the imperial presidency, in seminal articles like “The Two Majorities.”[41]

The conservative instinct toward Congress endured through the Eisenhower Administration. Yet as Jack Goldsmith recounted in an insightful essay, President Nixon’s election in 1968 spurred a reconsideration. Tracing National Review (and other key conservative journals, like The Public Interest) through the early 1970s, Goldsmith shows how conservative intellectuals came to recognize that executive power could be the key bulwark against the administrative bureaucracy’s own excesses, and against the conventional wisdom of elite media institutions.[42] And in the aftermath of Watergate, when the Democratic Congress enacted significant and wide-ranging limits on executive legal and political power—from foreign intelligence, to war powers, to emergency powers, the independent prosecutors, to campaign finance—conservatives rallied around executive power even more energetically.[43]

3.     Rediscovering the Founders

Conservatism’s shift on executive power became central to the conservative legal movement. So did one other pivotal period in modern conservative discourse.

Sixty years after Charles Beard downplayed the founding generation’s intellectual and moral weight in An Economic Interpretation of the Constitution of the United States (1913), appeals to the founding fathers’ constitutional vision were at low ebb. But this changed significantly in the run-up to 1976’s bicentennial year, when an outpouring of patriotic celebration returned the founders to center stage.[44]

To the public’s instinctual affections, conservative scholars added intellectual substance. In 1967, Bernard Bailyn had published his Pulitzer-winning study of the founders, The Ideological Origins of the American Revolution.[45] Eight years later, in the run-up to the bicentennial, The Public Interest published a pointed essay by Prof. Martin Diamond, on the era’s “disquieting account” of the American founding “which, quite apart from all other possible causes of political distress, has itself the logical tendency to make impossible the kind of constitutional contentment that so marked the nation’s first centennials.”[46] And, he warned, “it is upon the basis of this disquieting account that generations of American students have now received their instruction as to ‘what really happened’ at the founding.” So he urged readers to return to a more genuine appreciation of the founders’ own understanding of the Declaration and Constitution.[47]

Diamond was not alone. In 1973 and 1974, the American Enterprise Institute sponsored a series of keynote lectures at historical sites across America, to celebrate the imminent bicentennial: Irving Kristol at Washington’s St. John’s Church, on The American Revolution as a Successful Revolution, Martin Diamond at Philadelphia’s Congress Hall, on The Revolution of Sober Expectations, and other lectures by Gordon Wood, Seymour Martin Lipset, Dean Rusk, and others at sites across America.[48]

One should not overstate the impact of think-tank lectures, of course. That said, the bicentennial’s combination of public affection and scholarly writings is important: it reasserted not just the Constitution’s text, but the wisdom and virtue of the founders who wrote it. It represented the American narrative, and it re-rooted our Constitution in the actual community that wrote and ratified it, laying a foundation for the legal thinkers who soon built the modern conservative legal movement.

C.    The Emergence of Legal Conservatism

In 1976, Samuel Alito already had graduated from Yale Law School. In 1976 he began clerking for Judge Garth, and in 1977 he began a four-year stint as an Assistant U.S. Attorney in New Jersey. Which is to say, he attended law school right before the Federalist Society was founded, and Robert Bork “wasn’t that well known” yet.[49] And he was busy practicing law when conservative legal scholars began publishing foundational theoretical texts. In just those few years between his departure from New Haven and his arrival in Washington, the conservative legal world underwent profound changes.

Alito’s original inspiration, Alexander Bickel, seemed to point the way forward for conservative critics of the Warren and Burger Courts. George Will memorialized him as “the keenest public philosopher of our time.”[50] Robert Bork reviewed The Morality of Consent, Bickel’s posthumous book on constitutional law and Burkean conservatism, and concluded that it “is hard to believe the work will not prove seminal, that the tradition will not be elaborated by others.”[51]

But it wasn’t. Instead, conservative judges, scholars, and lawyers focused on the Constitution’s original intent, and the tools of legal textualism. They began in broad terms, with articles and books by Robert Bork,[52] William Rehnquist,[53] and Raoul Berger,[54] before spurring a generational wave of increasingly precise deeply researched articles and books.

Soon law students at Yale, Chicago, and Harvard founded the institutions that became the Federalist Society. The Yale founders evidently considered calling their club “The Alexander Bickel Society,” but the suggestion “generated little enthusiasm”[55]—a telling indication of how far Bickel’s star had fallen, so quickly.

The nascent Federalist Society’s inaugural student conference, in April 1982 at Yale, was followed quickly by the establishment of a national organization of students, faculty, and lawyers, with special emphasis on building a network, particularly in Washington.[56] And this, in turn, quickly gave rise to deep integration of the new legal organization and the Reagan Administration, in both the White House and the Justice Department, with the encouragement of Antonin Scalia, Boyden Gray, Ken Cribb, and other leading figures in the highest levels of government and legal academia.[57]

The injection of intellectual energy into the Reagan Administration’s legal departments became evident in mid-1985 when Attorney General Meese offered a speech to the American Bar Association. Criticizing the Supreme Court’s recent decisions on federalism, criminal law, and the Establishment Clause, he called for a constitutional “jurisprudence of original intention,” to “resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.”[58] His speech drew a rejoinder from Justice William Brennan to which Meese replied in turn, inaugurating a generational debate over the Constitution, the founding fathers, and the courts.[59]

But Meese’s formulation quickly proved problematic. His invocation of the founders’ “intent” was criticized for being too subjective, insufficiently restrictive of judicial discretion.[60] Accordingly, legal originalists came to focus more specifically on the original meaning of the Constitution’s words, as understood by the generation that wrote and ratified them,[61] and originalist legal scholars produced volumes of legal scholarship attempting to identify the original public meaning of various constitutional provisions.

These were years of extraordinary intellectual ferment and professional networking, especially in the Reagan Administration. Yet, in hindsight, one can see that Samuel Alito remained somewhat detached from it.

Although he joined the Solicitor General’s office in 1981, he remained something of an enigma among his Justice Department colleagues, who were largely unaware of his political leanings. “I was kind of a secret conservative,” he told the American Spectator’s Matthew Walther in 2014, until Solicitor General Charles Fried encountered him at a Federalist Society lunch meeting.[62] When Alito applied to be Charles Cooper’s deputy in the Office of Legal Counsel, the White House screener was so skeptical of Alito’s bona fides that he urged Alito “to go write something really fast and explain why we ought to allow you to go into this political position even though we’re kind of dubious about you,” Alito recalled.[63]

Alito’s statement, declaring “I am and always have been a conservative,” is interesting for its contrasts with what already was becoming conventional wisdom in the nascent conservative legal movement.[64] He cites Bickel as an inspiration, long after Bickel had been eclipsed by a new generation of conservative judges and scholars. He invokes the Warren Court’s excesses and issues like affirmative action and abortion, but without explicit mention of constitutional originalism or textualism. His prominent mention of “limited government, federalism, free enterprise, the supremacy of the elected branches of government,” and the Establishment Clause call to mind Meese’s famous ABA speech just months earlier, while his endorsement of “the legitimacy of a government role in protecting traditional values” strikes both Reaganite and Bickelian notes.[65]

Alito won the OLC post; two years later, he returned to New Jersey as the U.S. Attorney, and soon he would be appointed to the U.S. Court of Appeals for the Third Circuit. He had risen quickly through the ranks of the young conservative legal movement and continued to attract attention as a conservative judge.

Yet he accomplished all of it while remaining somewhat detached from the conservative legal movement’s increasingly theoretical and academic bent. The first generation of originalists quickly left Bickel behind, but Alito did not. The first generation of originalists no doubt meant to be populists, but they gravitated toward elite institutions in government and academia; Alito took another path.

II.             “The Burkean Justice”

A.    Alito as “The Burkean Justice”

When then-Judge Alito appeared before the Senate Judiciary Committee in 2005, the conservative legal movement was a quarter-century old, ripened with originalist judicial decisions and legal scholarship. The first generation of legal conservatives had largely marginalized, even delegitimized, reliance on legislative history as a supplementary tool for legal interpretation. Yet when Senator Grassley asked Justice Alito about legal interpretation, the nominee offered an unconventional answer.

“When I interpret a statute, I do begin with the text of the statute,” he began; “I think that certainly is the clearest indication of what Congress as a whole had in mind in passing the statute.” But “when there is an ambiguity in the statute,” he continued:

I think it is entirely legitimate to look to legislative history, and as I said, I have often done that. . . . [I]t has to be done carefully and I think with a realistic evaluation of the legislative process, but I’m not one of the judges who thinks that you should never look to legislative history. I think it has its place.[66]

And for the Constitution, he offered a similar approach. “I think the Constitution contains both some very specific provisions, and there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy.” But, he continued, “it also contains some broad principles”—unreasonable searches and seizures, due process, equal protection—“[a]nd in those instances, it is the job of the judiciary to try to understand the principle and to apply it to the new situations that come before the judiciary.”[67] He emphasized, “I would never say that it is an easy process. There are some easy cases, but there are a lot of very difficult cases. And once you have identified the principle, the job of applying it to particular cases is often not easy at all.”[68]

Justice Scalia had already offered caveats to the application of originalism and textualism, at least when application of the Constitution’s original meaning points to particularly untenable results.[69] But Alito was conceding a very different limit—not the limit of applying a constitutional provision’s principle, but the limit of ascertaining a constitutional principle with specificity.

This difference became clear in a series of opinions that Justice Alito wrote in 2010 and 2011, in cases involving the First Amendment’s freedom of speech. First, in United States v. Stevens, a case involving videos depicting the crushing of animals, he dissented from the Supreme Court’s decision striking down a federal statute criminalizing the production, sale, or possession of depictions of animal cruelty; where the Court saw the statute as unconstitutionally overbroad, Alito saw the constitutional issue as much more ambiguous.[70]

“The First Amendment protects freedom of speech,” he wrote, “but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct,” and Congress had legislated its prohibition based on “compelling evidence” of the need for the law. “Under these circumstances,” he concluded, “I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue.”[71]

He reached a similar conclusion a year later, in Brown v. Entertainment Merchants Association, a constitutional challenge to California’s law against the sale of violent video games to children.[72] Justice Scalia, again writing for the Court, held such video games to be constitutionally protected speech, akin to “Hansel and Gretel (children!) kill[ing] their captor by baking her in an oven” or “Homer’s Odysseus blind[ing] Polyphemus the Cyclops by grinding out his eye with a heated stake.”[73] Yet Alito merely concurred in the Court’s judgment, concluding that the First Amendment, rightly understood, might afford legislatures much more discretion to regulate modern video games, given their unprecedentedly vivid and immersive depictions of violence and the real-world effects that such games might have on children. “The Court acts prematurely in dismissing this possibility out of hand,” he warned, and “I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.”[74]

And in Snyder v. Phelps, he dissented from the Court’s holding that the First Amendment protected the Westboro Baptist Church’s aggressive and disturbing protest of a military funeral.[75] “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he urged.[76] The First Amendment protects any number of expressive activities, but it “does not follow, however, that [protestors] may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.”[77] Preserving space for “family members to have a few hours of peace without harassment does not undermine public debate,”[78] he emphasized; “I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.”[79]

Weeks after the last of these opinions was published, an article in the Weekly Standard surveyed the themes of Alito’s opinions, their contrasts with the Court’s majority opinions, and the intellectual biography of Alito himself, and called him “The Burkean Justice.”[80]

B.     Alito on “The Burkean Justice”

When Alito keynoted Columbia Law School’s aforementioned conference on “Burkean Constitutionalism,” he took the Weekly Standard’s “Burkean Justice” phrase as a compliment, given his own longtime admiration of Edmund Burke.[81] But he also recognized that “Burkean constitutionalism” can mean very different things to different people. “Everyone wants to answer the question, ‘What would Edmund Burke do?’,” he observed.[82] But that is a harder question, and its application to the actual work of American judges is harder still.

Recognizing that Burke was not a systematic theorizer but a legislator, Alito began by quoting Burke’s own warnings against abstraction: “Circumstances . . . give in reality to every political principle its distinguishing color and discriminating effect,” Burke wrote in his Reflections on the Revolution in France; “[t]he circumstances are what render every civil and political scheme beneficial or noxious to mankind.”[83] And, as Burke added in his Letter to a Noble Lord (1796), “[n]othing can be conceived more hard than the heart of a thoroughbred metaphysician.”

Surveying modern invocations of Burke on both the right and the left, Alito suggested three possible categories of “Burkean” thought: first, the “substantive Burkeanism” of deciding matters narrowly, with no sharp breaks from precedent or settled doctrines; second, “methodological Burkeanism,” respecting incremental improvements and reforms in governance, such as the prioritization of a written Constitution’s original meaning over the common-law constitutionalism that preceded it; and third, “Burkeanism as prudent judging,” counseling judges to respect human society’s complexities, the human mind’s limitations, and the (presumptively) accumulated wisdom of long-standing practices and institutions.

In presenting these three categories, Alito did not explicitly identify himself with any one category; in fact, he explicitly declined to endorse any of them. But for the first two— “substantive” and “methodological” Burkeanism—he offered not just arguments in their favor but also significant criticisms, especially in the tendency of some “Burkeans” to mistake judicial precedents for Burkean traditions. Judicial precedents, Alito emphasized, are discrete exercises of individual human judgment—or by decisions of a single Supreme Court—and like all such judgments they are prone to error and hubris.

For the third category, Burkeanism as prudent judgment, Alito seemed relatively more favorable, because it seemed to encourage a Burkean disposition to recognize that rigid adherence to a particular methodology or substantive judgment would itself fail to take sufficient consideration of prudential considerations. Perhaps, he suggested, in some cases there are good reasons, even “Burkean” reasons, for judges to depart from minimalism, incrementalism, and conventionalism. And, he added, there are Burkean reasons to recognize the limits of originalism—he cited violent video games (per Entertainment Merchants) and GPS tracking devices (per U.S. v. Jones,[84] decided just months earlier) as examples.

In sum, Justice Alito’s keynote remarks revealed the breadth and depth of his understanding of both Burke and “Burkean” theories. But it also highlighted the extent to which Alito’s own conservatism resembles the formative conservative debates of decades earlier, rather than the increasingly theoretical originalist methodology prevalent today among conservative judges and legal scholars. And, finally, it offers useful context for some of the most significant constitutional and judicial debates of our time.

1.     On Academics, Theory, and Metaphysics

When Justice Alito invoked Burke’s warning against “thoroughbred metaphysicians,” it echoed Madison’s warning about “theoretic politicians,”[85] but it also presaged comments that Alito would make elsewhere about the Court’s increasingly theoretical bent. “We’re now, I think, the most academic Supreme Court that has ever existed: four of my colleagues were full-time, very distinguished law professors,” he told the American Spectator in 2014. “I was not.”[86]

The energetic pursuit of originalist theory in law schools was surely a good thing, but the centralization of originalist discourse in academia is at least a little ironic, given earlier conservatives’ fondness for Bill Buckley’s preference for the Boston phonebook over the Harvard faculty. And, to be sure, Buckley’s Harvard faculty was not an originalist faculty workshop. But academic originalists are, in the end, academics and theoreticians, and thus will almost inevitably never share the earlier conservative skepticism of academic theorizing.

Justice Alito, by contrast, was formed by the generation of conservatives who shared that skepticism, and his entire legal career—as a litigator, a prosecutor, and a judge—has tended toward a more practical view of legal craft. He begins with legal principle, and applies legal theories, but he is cognizant of the practical limits of theory, and he also understands that practical experience helps to bring the principles themselves into clearer view.

Indeed, perhaps the most apt quote from Buckley is not the famous phonebook quip, but Buckley’s description of the Supreme Court in the late 1970s: “The Supreme Court of the United States discovers every year or so something in the Constitution not only that hasn’t been discovered before, but something which the formulators of that particular article or amendment to the Constitution specifically rejected. But it becomes law. This is called casuistry . . . .”[87]

Buckley added that “[t]here is reason so many law students are uneasy about the profession they will soon be practicing; soon, we pray, may be reforming.”[88] And, as we know, the Federalist Society soon undertook that generational project of reform. But the more that the new generation of conservative legal scholars and judges moves from a posture of judicial restraint to a posture of judicial creativity, the more that Buckley’s criticism will apply to them, too.

Justice Alito seems likely to stick with Buckley and to find himself in disagreement with other originalist judges in cases reminiscent of his First Amendment opinions. “[O]ur legal system does not exalt reason above everything else,” he has warned elsewhere.[89]

2.     On Tradition and Community

Justice Alito’s emphasis of tradition—as distinct from mere judicial precedents—in his Columbia remarks echoed or foreshadowed judicial opinions in which he defended tradition and community from the encroachment of judges and litigators. In Town of Greece v. Galloway (2014), for example, his concurrence with the Court’s decision to uphold the constitutionality of a town council’s ceremonial prayer focused on the deep American tradition of civic prayer and the need for courts to allow that part of American civic life to remain intact.[90]

But Alito’s Columbia remarks highlight the fact that his respect for precedents is not a matter of respecting tradition for tradition’s sake. Rather, it reflects a Burkean recognition that traditions and institutions can embody accumulated wisdom as to principles and their limits. This is not a denigration of the principles themselves—“If we don’t have fixed and clear principles then it is very easy for us to go astray,” he warned elsewhere[91]—but it is a call for humility in attempting to ascertain the nature and limits of those principles.

That insight undergirded Bickel’s own thought—not just in the most explicitly Burkean themes of his later books, but much earlier, in The Least Dangerous Branch. Quoting Harry Jaffa’s seminal study of Lincoln’s own constitutionalism, Bickel wrote that the principles embodied in the Constitution’s text are often understood best not just in the abstract, but with the help of experience of American democracy, practiced through its institutions—“from within the democratic ethos and perfections of that ethos.”[92]

Thus, when government action—especially the swift and sweeping work of agencies, executives, and courts, rather than legislatures—threatens longstanding traditions or the institutions and communities that keep and transmit them, Justice Alito’s instinct has been to begin with a presumption in favor of defending tradition. The most recent and emphatic example of this is his opinions in the Court’s cases on religious liberty and administrative power.[93] It was evident in his address to the Federalist Society in late 2020, warning that religious liberty “is in danger of becoming a second-class right.”[94]

3.     On Precedent and Precedents

At Columbia, Justice Alito emphasized the need to distinguish judicial precedents from Burkean traditions, recognizing that modern judicial precedents are the product of discrete decisions by individual judges, and thus they tend to lack the very benefits of wisdom embodied by genuine traditions and institutions.

This is not to denigrate precedent per se—far from it. At his confirmation hearing, he emphasized the importance of stare decisis:

It’s a fundamental part of our legal system, and it’s the principle that courts in general should follow their past precedents, and it’s important for a variety of reasons. It’s important because it limits the power of the judiciary. It’s important because it protects reliance interest, and it’s important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It’s not an inexorable command, but it is a general presumption that courts are going to follow prior precedents[.][95]

This continued on the Court, when he criticized what he saw as his colleagues’ too-eager overturning of precedent. For example, when the Court overturned its key precedent on non-unanimous criminal juries in Ramos v. Louisiana (2020), Alito dissented loudly: “The doctrine of stare decisis gets rough treatment in today’s decision,” he wrote. “Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered.”[96]

Yet as he emphasized in his Columbia remarks, he also sees clearly the limits of precedent. “[I]f the Court has gone down a wrong path and the wrong path is creating bad consequences,” he explained in 2009, “then what the Court should do is say, ‘Well, we made a mistake. We took a wrong turn. We’re going to go back and correct the mistake.’”[97] Moreover, when parties or justices invoke a judicial precedent and attempt to rely on it, Justice Alito takes a very close look at the precedent itself—its original terms, its facts and context—before concluding that the precedent ought to again bind the Court.[98]

In short, Alito understands that one should respect precedent generally, while also recognizing the fallibility of any particular precedent. His approach in Dobbs, surely the most significant judicial opinion of his entire career, reflects this approach.[99] When his critics condemned that judicial opinion as a sweeping rejection of precedent,[100] their criticism revealed more about themselves than about their target. Alito himself, by contrast, approaches the doctrine of stare decisis with the mix of both the respect and the realistic skepticism that it requires—as he explained at Columbia and has exemplified on the bench.

4.     On Concentrated Power More Generally

Alito’s underlying recognition of the risk of error inherent in human action applies equally to executives and agencies, too, and thus Justice Alito has often been wary about deferring to the judgments of energetic administrators, especially when constitutional rights are at risk.[101]

Perhaps the best and most recent example of Alito’s concerns about concentrated power and the risk of error is found in his recent comments on the “shadow docket,” involving cases in which the Supreme Court grants preliminary injunctive relief upon district court judges’ review of administrative agencies’ actions. Where critics have attacked the Court for granting preliminary injunctions against agencies, Alito has defended the Court’s approach as a pragmatic accommodation of circumstances in which preliminary relief is needed to temporarily delay the swift and significant action of agencies or district courts.

Would Alito deny the risk that the Court itself might make a mistake in such moments? His comments, over the years, about judges’ own propensity for error suggest otherwise. Rather, in debates about the “shadow docket,” his criticism is directed toward those who advocate for a one-size-fits-all approach that would defer enormously to district judges or administrative officers. If it is necessary to place presumptive weight in favor of institutional judgment, he sets his own presumption in favor of the settled practices, traditions, and institutions that he sees as society’s least-unreliable stock of wisdom.

5.     On the People and the Laws that They Enact

Justice Alito’s Burkean instincts are evident in his textualism. As seen most recently in Bostock v. Clayton County,[102] Justice Alito’s textualism is not a theoretical inquiry into the abstract or objective definition of words in a statute, but rather a much more realistic assessment of the law’s words as informed by the understandings and expectations of the people who enacted them. In that case, the Court held that the Civil Rights Act’s Title VII applies to discrimination related to sexual orientation or gender identity, even while recognizing that the congressmen who enacted the law might not have expected the law to apply in such a way: “it is ultimately the provisions of those legislative commands rather than the principal concerns of our legislators by which we are governed.”[103]

But for Alito, the law’s meaning could not be so easily separated from the actual Congress’s reasonable expectations and intentions: “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted,” he wrote, and that made all the difference.[104]

As noted above, the conservative legal movement’s textualism has tended to become more abstract, theoretical, and “objective” over time. This change occurred for good reasons, but it also came at a cost: the new textualism disconnects the law from the actual, stated intentions and understandings of the actual, specific community that enacted the law. A move away from “original intent” toward a more objective “original understanding” inquiry reduces the risk that judges will read imagined intentions into the law, but it also increases the risk that judges will fail to recognize a community’s actual intentions as limitations on the judge’s own theoretical inquiry.

* * *

Justice Alito is a Burkean conservative. But he is also an American conservative, who would conserve American values and institutions not with theories but with a wariness of grand theories and of grandiose theorizers. He starts instead from appreciation—of Americans and America, and of the dangers of concentrating too much power the hands of elites or elite institutions.

In all of this, he reflects the era and ideas that formed him, more than the present day. Today’s conservatives, choosing their own paths forward, can benefit from his example.

^* Senior Fellow, American Enterprise Institute; Co-Executive Director, Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.

[2] Adam J. White, The Burkean Justice, Wkly. Standard (July 18, 2011), https://www.washingtonexaminer.com/weekly-standard/the-burkean-justice [https://perma.cc/BFV5-EUWN].

[3] See Columbia Law School, U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court (Apr. 24, 2012), https://www.law.columbia.edu/news/archive/us-supreme-court-justice-samuel-alito-says-pragmatism-stability-should-guide-court [https://perma.cc/V4DF-9CB4]. I happened to attend that conference; in this article, my general descriptions of his remarks are based on notes, while any direct quotes come from the Columbia Law School’s article.

[4] Matthew Continetti, The Right: The Hundred Year War for American Conservatism (2022).

[5] William F. Buckley, Jr., Notes Toward an Empirical Definition of Conservatism, in What Is Conservatism? 212 (Frank S. Meyer Ed., 1965).

[6] See, e.g., Randy Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016); Adrian Vermeule, Common Good Constitutionalism (2022); Greg Weiner, The Political Constitution: The Case Against Judicial Supremacy (2019); John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (2013).

[7] Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, S. Hearing 109-277, 109th Cong. 54 (Jan. 9–13, 2006) (hereinafter “Confirmation Hearing”).

[8] Id. at 55.

[9] Id. at 54.

[10] Id. at 54–55.

[11] Id. at 55.

[12] Id.

[13] Id.

[14] 377 U.S. 533 (1964).

[15] David D. Kirkpatrick, Court Nominee Presents Father as Role Model, N.Y. Times, Dec. 5, 2005, https://www.nytimes.com/2005/12/05/politics/politicsspecial1/court-nominee-presents-father-as-role-model.html [https://perma.cc/49AW-ZVAU].

[16] Bill Kristol, Conversations (July 10, 2015), https://conversationswithbillkristol.org/transcript/samuel-alito-transcript/ [https://perma.cc/KC93-ALCL].

[17] Alexander Bickel, The Supreme Court and the Idea of Progress 108–15 (1970).

[18] Id. at 111.

[19] Id.

[20] Id. at 111–12.

[21] Id. at 166 (quoting The Federalist No. 10 (James Madison)).

[22] Alexander M. Bickel, Notes on the Constitution, Commentary, Aug. 1975, at 53; Alexander M. Bickel, The Morality of Consent (1975).

[23] Bickel, supra note 17, at 174–75.

[24] See, e.g., id. at 41 (“On a linear plane we are not far from where we started. The distance is from Lochner v. New York . . . to the holding in Griswold v. Connecticut[.]”); Griswold v. Connecticut, 85 S.Ct. 1678 (1965).

[25] Confirmation Hearing, supra note 7, at 519–20.

[26] Id. at 382; see also id. at 381 (“I don’t believe that I—in fact, I am quite sure I never was opposed to the one person/one vote concept. I do recall quite clearly that my father’s work at the time working for the New Jersey Legislature and working on reapportionment had brought to my attention the question of just how far that principle of one person/one vote had to be taken in drawing legislative districts.”).

[27] Id. at 381.

[28] Alito OLC Application Statement, supra note 1, at 1.

[29] Kristol, supra note 16.

[30] Id.

[31] John B. Judis, William F. Buckley, Jr.: Patron Saint of the Conservatives 14 (1988).

[32] Continetti, supra note 4, at 98 (2022).

[33] Id. at 97–98.

[34] Id. at 178.

[35] See, e.g., Jeffrey Hart, The Making of the American Conservative Mind: National Review and Its Times 158–60 (2005) (John Birch Society); Judis, supra note 31, at 287 (Wallace).

[36] William F. Buckley, Jr., The Aimlessness of American Education, Newsday, Mar. 5, 1960, reprinted in William F. Buckley, Jr., Rumbles Left and Right 134 (1964) (When Buckley republished the essay in a 1964 collection, the Garden City phonebook became the more famous “Boston telephone directory.”).

[37] Id.

[38] OLC Application Statement, supra note 1, at 1.

[39] Matthew Walther, Sam Alito: A Civil Man, Am. Spectator (Apr. 21, 2014), https://spectator.org/sam-alito-a-civil-man/ [https://perma.cc/AB4M-BNDW].

[40] William F. Buckley Jr., Miles Gone By: A Literary Autobiography 289 (2004). Buckley offered that tribute to Burnham at National Review’s twenty-fifth anniversary dinner, in 1980. See Hart, supra note 35, at 254.

[41] Willmoore Kendall, The Two Majorities, 4 Midwest J. Pol. Sci., 317 (1960), reprinted in Willmoore Kendall Contra Mundum (Nellie D. Kendall ed., 1971). See also Willmoore Kendall & George W. Carey, The Basic Symbols of the American Political Tradition 137–54 (1970).

[42] Jack Goldsmith, The Accountable Presidency, The New Republic, Feb. 1, 2010, at 33, 35–36.

[43] When Buckley published his first compendium of conservative thought, Did You Ever See a Dream Walking? (William F. Buckley, Jr., ed., 1970), he included Kendall’s Two Majorities. But two decades later, when he published a revised version as Keeping the Tablets (Harper & Row 1988), a different Kendall essay (Equality and the American Political Tradition) had taken its place. It was a subtle but telling editorial judgment.

[44] And not just in 1776, the 1972 musical and movie.

[45] Bernard Bailyn, The Ideological Origins of the American Revolution (1967)

[46] Martin Diamond, The Declaration and the Constitution: Liberty, Democracy, and the Founders, 41 Pub. Int. 39, 40 (Fall 1975).

[47] Id. at 45.

[48] See S.J. Tonsor, America’s Continuing Revolution: An Act of Conservation (1975) (collecting the lectures).

[49] Kristol, supra note 16.

[50] George F. Will, The Roots of Watergate, Wash. Post, Dec. 27, 1974, at A17.

[51] Robert H. Bork, Alexander M. Bickel, Political Philosopher, 1975 Sup. Ct. Rev. 419, 421 (1975).

[52] Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).

[53] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).

[54] Raoul Berger, Government By Judiciary (1977).

[55] George W. Hicks, Jr., The Conservative Influence of the Federalist Society on the Harvard Law School Student Body, 29 Harv. J.L. & Pub. Pol’y 623, 648 (2006).

[56] Steven M. Teles, The Rise of the Conservative Legal Movement 138–40 (2008).

[57] Id. at 139–47.

[58] Edwin Meese, III, Att’y Gen., Speech Before the American Bar Association, in Originalism: A Quarter-Century of Debate 47–54 (Steven G. Calabresi ed., 2007).

[59] See Craig Crawford, Legal Debate Pitts Meese vs. Brennan, Orlando Sentinel, Aug. 10, 1986.

[60] See, e.g., H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); cf. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980).

[61] Cf. Frank Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 60 (1988) (“The words of the statute, and not the intent of the drafters, are the ‘law.’”).

[62] Walther, supra note 39.

[63] Id.

[64] OLC Application Statement, supra note 1.

[65] Id.

[66] Confirmation Hearing, supra note 7, at 504.

[67] Id. at 378–79.

[68] Id. at 379.

[69] At the conclusion of his seminal defense of originalism, he offered one such caveat: “I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.” But then again, he added, “I cannot imagine such a case’s arising either.” Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, 864 (1989). Twenty years later, he explicitly repudiated any faintheartedness. Jennifer Senior, In Conversation: Antonin Scalia, N.Y. Mag., Oct. 4, 2013, at https://nymag.com/news/features/antonin-scalia-2013-10/ [https://perma.cc/Y5LM-SX8D].

[70] 559 U.S. 460 (2010).

[71] Id. at 493 (Alito, J., dissenting).

[72] 564 U.S. 786 (2011).

[73] Id. at 796.

[74] Id. at 820 (Alito, J., concurring in the judgement).

[75] 562 U.S. 443 (2011).

[76] Id. at 463 (Alito, J., dissenting).

[77] Id. at 464.

[78] Id. at 473.

[79] Id.

[80] Adam J. White, The Burkean Justice, Wkly. Standard, July 18, 2011, at 20. Nearly a decade later, two scholars similarly declared that “Justice Alito is, at bottom, the Supreme Court’s Burkean Justice.” See Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L. Rev. 507, 578 (2019).

[81] See Columbia Law School, U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court (Apr. 24, 2012), https://www.law.columbia.edu/news/archive/us-supreme-court-justice-samuel-alito-says-pragmatism-stability-should-guide-court [https://perma.cc/5L7L-YH9W]. As noted above, I happened to attend that conference; in this article, my general descriptions of his remarks are based on notes, while any direct quotes come from the Columbia Law School’s article.

[82] Id.

[83] Id. (quoting Edmund Burke, Reflections on the Revolution in France (1790)).

[84] 565 U.S. 400, 418 (2012) (Alito, J., concurring in judgment).

[85] The Federalist No. 10 (James Madison).

[86] Walther, supra note 39.

[87] William F. Buckley, Jr., A Hymnal: The Controversial Arts 215 (1978).

[88] Id. at 216.

[89] Samuel A. Alito, Jr., Remarks of Justice Alito: The Catholic University of America, Columbus School of Law Commencement, 58 Cath. U. L. Rev. 1, 5 (2008).

[90] 572 U.S. 565 (2014) (Alito, J. concurring).

[91] Alito, supra note 89, at 4.

[92] Alexander M. Bickel, The Least Dangerous Branch 67 (1962) (quoting Harry Jaffa, Crisis of the House Divided 417 (1959)).

[93] See, e.g., Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) (Alito, J., dissenting from denial of application for injunctive relief); Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014); Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 2367, 2387 (2020) (Alito, J., concurring).

[94] Samuel A. Alito Jr., Assoc. Just., Sup. Ct,, Keynote Address at the Federalist Society National Lawyers Convention (Nov. 12, 2020).

[95] Confirmation Hearing, supra note 7, at 318–19.

[96] Ramos v. Louisiana, 140 S. Ct. 1390, 1425 (2020) (Alito, J., dissenting).

[97] The Second Conversation with Justice Samuel A. Alito, Jr.: Lawyering and the Craft of Judicial Opinion Writing, 37 Pepp. L. Rev. 33, 55 (2009); cf. Jeremy Rozansky, Precedent and the Conservative Court, Nat’l Affairs (Winter 2021), https://nationalaffairs.com/publications/detail/precedent-and-the-conservative-test [https://perma.cc/7Y9E-EYVZ]; Joel Alicea, Stare Decisis in an Originalist Congress, 35 Harv. J.L. & Pub. Pol’y 797 (2012).

[98] See Ramos, 140 S. Ct. at 1425 (Alito, J., dissenting).

[99] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2261–78 (2022).

[100] See, e.g., David Litt, A Court Without Precedent, Atlantic (July 24, 2022), https://www.theatlantic.com/ideas/archive/2022/07/supreme-court-stare-decisis-roe-v-wade/670576/ [https://perma.cc/RWY5-66XT] (“[T]he Court’s right-wing majority has reneged on its end of the deal. With centuries of accumulated power at its disposal, the judiciary plans to use that power less cautiously than ever before. We are not just living in a moment without precedent. We are living in a moment without precedents.”).

[101] See, e.g., Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) (Alito, J., dissenting from denial of cert.).

[102] 140 S. Ct. 1731 (2020).

[103] Id. at 1749 (quotation marks omitted).

[104] Id. at 1757 (Alito, J., dissenting); see also id. at 1776–77.

An Architect of Religious Liberty Doctrines for the Roberts Court – Gabrielle Girgis

Posted by arispitzer on Apr 24, 2023 in Per Curiam

An Architect of Religious Liberty Doctrines for the Roberts Court

Gabrielle Girgis*

Introduction: A “Practical Originalist” on the Religion Clauses

Justice Alito’s work on religion law is a hallmark of his jurisprudence. He has shaped this field more than any other sitting Justice, and perhaps even more than any other member of the Court in its history. On many issues—religious neutrality and religious exemptions, church autonomy, the Establishment Clause, and more—he has authored pioneering opinions that have refined existing doctrines. He has elaborated precedents to meet new challenges and then, when they have proven unworkable, replenished the caselaw by drawing on deeper sources—forgotten precedents, historical practice, and the text. In this way, Alito’s religion opinions highlight his distinctive approach as a doctrinalist and practical originalist, combining discipline with vision.

His contributions began, remarkably, with his time as a circuit judge. When the Supreme Court in Employment Division v. Smith[1] declared that under the Free Exercise Clause, a law would trigger strict scrutiny—and potentially an exemption—only if the law failed to be neutral and generally applicable, the meaning of “neutrality” was far from clear. The most important answer came from then-Judge Alito, who defined and applied the concept in ways that would guide the Supreme Court’s own cases for decades—including in its free exercise review of COVID-19 regulations some 30 years later.

Besides refining free exercise doctrine, Justice Alito has at times urged deeper changes. His concurrence for Fulton v. City of Philadelphia[2] presses the Court to overturn Smith entirely, and to restore the pre-Smith rule that even facially neutral and generally applicable laws ought to be reviewed under strict scrutiny when they substantially burden a person’s religion.[3] At one level, of course, to overrule Smith would be a break with existing doctrine. But Alito’s concurrence in Fulton took the position that overturning Smith would be a move toward greater coherence. His opinion painstakingly marched through history and caselaw to make the case that Smith rested on shaky foundations. Smith itself was poorly reasoned, its framework had proven unworkable, and later decisions had undermined its reach.[4] Under these circumstances, he argued, the integrity of free exercise law would best be served by reaching past Smith for deeper sources—text, history (including the Founding-era state protections for religion that provided the backdrop for the First Amendment), and pre-Smith precedents that for decades had afforded religion more surefooted protection.[5]

Justice Alito’s comprehensive analysis in Fulton can only be fully appreciated in its broader context. Many of his earlier decisions offer guidance for how religious-liberty claims will likely fare in a post-Smith world. These include several opinions applying federal laws that sought to restore the pre-Smith rule in statutory form: Burwell v. Hobby Lobby Stores,[6] Holt v. Hobbs,[7] and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.[8] These decisions highlight the key questions that lower courts, litigants, and scholars will have to grapple with in religious-liberty cases if, and when, the Court takes up Justice Alito’s invitation in Fulton.

A similar theme of doctrinal sophistication and historical sensitivity animates Justice Alito’s Establishment Clause opinions. When the Court began moving its caselaw, by fits and starts, away from the so-called Lemon test’s multi-factor, theoretical analysis (turning on whether the law has a secular purpose, etc.),[9] and toward a more purely historical approach (based on whether a practice of recognizing religion is part of a longstanding tradition),[10] Alito’s opinion for the Court in American Legion v. American Humanist Association[11] brought that development to near-completion. It did so to such an extent that by the next time the Court addressed the question in Kennedy v. Bremerton[12], it could say that American Legion had effectively killed the Lemon test,[13] so that now all that controlled Establishment Clause analysis were text and history.[14]

In spelling Lemon’s demise, Alito’s American Legion opinion was—like his call to overturn Smith—about both change and deeper continuity. Rather than dismiss Lemon casually, Justice Alito’s opinion thoroughly studied the doctrine’s operation over decades, found it irretrievably unworkable and eroded by more recent cases, and declared that doubling down on Lemon now would only create further confusion in the caselaw.[15] Thus, going beyond Lemon to first principles—to text and historical practice—was the best way to keep the law cogent.

Finally, when the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC[16] embraced an important church-autonomy doctrine—the ministerial exception—Alito’s doctrinal acumen again proved valuable. His concurrence in the case anticipated questions that would soon arise (about how to define a “minister”) and provided a roadmap that would guide lower courts until it became controlling Supreme Court precedent, through a majority opinion by Alito himself, in Our Lady of Guadalupe School v. Morrissey-Berru.[17]

This recurring pattern—of working from within received doctrines but elaborating them and sometimes, in an effort to achieve more genuine coherence, moving beyond them—reflects his distinctive gifts and tendencies as a judge. He is faithful to caselaw but not in a wooden way; sensitive to its need for renewal and inclined to renew, as needed, based on text and history. In other words, here as elsewhere (as other Essays in this volume confirm), Alito balances attention to doctrine and original sources. And here even more than elsewhere, he has been the Court’s leader.

I.               Toward a New Era of Free Exercise Interpretation

Justice Alito’s free exercise opinions have filled out the old and pointed toward the new. In a Third Circuit case called Fraternal Order of Police v. City of Newark[18], then-Judge Alito helped the Supreme Court to answer to a key question under Smith’s interpretation of the First Amendment: what it meant for a law to fail to be “neutral” toward religion (and thus warrant strict scrutiny). But as Justice he would eventually call for Smith’s reversal, to bring free exercise law more in line with the original meaning of the First Amendment. If Smith is overturned, the Court would be able to draw on some of Alito’s opinions again, this time to articulate its new model for assessing exemption claims. It could draw, in particular, on his opinions applying the Religious Freedom Restoration Act[19] (RFRA) and the Religious Land Use and Institutionalized Persons Act[20] (RLUIPA)—two federal laws through which Congress sought to restore the religious exemptions test scrapped by Smith.

As noted above, under the Court’s guiding interpretation of the Free Exercise Clause in Smith, there is no constitutional entitlement to religious exemptions from (or even heightened scrutiny of) laws that are neutral and generally applicable. In other words, strict scrutiny applies only if, say, the challenged law targets religion or involves “a context that len[ds] itself to individualized governmental assessment of the reasons for the relevant conduct”[21] (like the denial of unemployment insurance to those refusing work for religious reasons, as in Sherbert). The Supreme Court’s first occasion to apply this standard was fairly straightforward. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah[22], members of the Santeria religion in Florida argued that a local ordinance prohibiting animal slaughter violated their free exercise right to practice ritual animal killing. In a decision upholding that claim, the Court explained that the law, while facially neutral, was designed to target Santeria practice, because it banned animal-killing only when undertaken for religious reasons. Since exemptions to the no-slaughter rule were allowed if the killing was performed for secular reasons, the Court concluded, “religious practice [was] being singled out for discriminatory treatment.”[23]

But what are other, less glaring ways to violate Smith’s insistence on neutrality and general applicability? And must the policy involve a system of individualized exemptions (like the unemployment insurance context of Sherbert, and the animal-slaughter ordinance in Lukumi), or are there other warning signs of non-neutrality? The first prominent answers—decisive for future cases—came from then-Circuit Judge Alito in Fraternal Order of Police. Sunni Muslim police officers in Newark, New Jersey, had been dismissed for refusing to shave their beards, in violation of the police department’s grooming policy. But the policy made an exception for those who refused to shave for medical reasons. The Muslim officers argued that the policy triggered strict scrutiny under Smith and Lukumi. Alito agreed with their argument that “since the Department provides medical—but not religious—exemptions from its ‘no-beard’ policy, it has unconstitutionally devalued their religious reasons for wearing beards by judging them to be of lesser import than medical reasons.”[24] In particular, Alito explained, it did not matter whether the secular exemption was “individualized,” as in Sherbert and Lukumi, because the Supreme Court’s fundamental “concern” in Lukumi was simply “the prospect of the government’s deciding that secular motivations are more important than religious motivations,” and “this concern is only further implicated when the government does not merely create a mechanism for individualized exemptions [as in Lukumi], but instead, actually creates a categorical exemption for individuals with a secular objection but not for individuals with a religious objection [as in Fraternal Order of Police].”[25] Whatever the precise mechanism, it was the state’s treatment of secular reasons for an exemption more favorably than religious reasons that was “suggestive of discriminatory intent so as to trigger heightened scrutiny under Smith and Lukumi.”[26]

Alito’s opinion clarified a second and more important question. Does just any exemption for secular but not religiously motivated conduct trigger heightened scrutiny under Smith? Or must the exempted secular conduct be sufficiently analogous to the religious conduct? The very end of his opinion answered: Courts should apply strict scrutiny only when the exempted secular conduct would comparably undermine the state’s interest in the rule at issue.[27] For example, in Fraternal Order of Police, the fact that the police department exempted undercover police officers (but not religiously motivated officers) from its no-beard policy was not enough to trigger strict scrutiny—because letting undercover police officers grow a beard did not undermine the department’s asserted interest in “fostering a uniform appearance” (since “undercover officers ‘obviously are not held out to the public as law enforcement person[nel]’”).[28] But strict scrutiny was triggered by exemptions for publicly identifiable officers who refused to shave for medical reasons, because their refusals did undermine the department’s interest in uniformity just as much as religiously motivated refusals.

This account of when secular conduct is comparable—so that privileging it violates neutrality, and triggers strict scrutiny—has shaped the Supreme Court’s reasoning in other free exercise cases, as recently as those challenging COVID-19 regulations. A common thread in these Court decisions is that governments may not impose more stringent rules on religious activity than on secular activities that pose a comparable risk to public health. In Tandon v. Newsom,[29] for example, religious believers were granted an injunction from the state’s restrictions on private gatherings, which limited their ability to meet for worship in their own homes. In a per curiam opinion, the Court insisted that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”[30] And crucially, echoing then-Judge Alito, it reiterated that “whether two activities are comparable . . . must be judged against the asserted government interest that justifies the regulation at issue.”[31] With COVID restrictions, “[c]omparability is concerned with the risks various activities pose, not the reasons why people gather.”[32] In Tandon, the problem was that “California treat[ed] some comparable secular activities more favorably than at-home religious exercise,” by allowing facilities like “hair salons, retail stores, personal care services, movie theaters,” and restaurants “to bring together more than three households at a time.”[33]

This reading of the Smith test on neutrality reflects then-Judge Alito’s best effort to clarify a higher court’s precedent in light of the Free Exercise Clause. Yet as a Justice, Alito has explained why Smith’s standard is still insufficiently workable or protective of free exercise. His extended concurrence in Fulton arguing for Smith to be overruled on these grounds is worth considering closely. A chief problem with Smith, he argues, is its narrowness, which comes at the expense of religious freedom that should be protected under the First Amendment. As he points out early in the opinion, Smith’s reasoning has “startling consequences.”[34] Under Smith, laws could be constitutional—consistent with free exercise—even if they prohibited alcohol consumption, for example, or slaughter of a conscious animal, or circumcision, without making exceptions for the celebration of the Catholic Mass, kosher and halal slaughter, or ritual circumcision in Judaism and Islam.[35]

The remainder of his concurrence argues that these consequences are not merely counterintuitive, but indeed unconstitutional, judging by the original meaning of the Free Exercise Clause, both on its face and in light of then-existing state constitutions (which provided a backdrop for the Clause’s adoption).[36] Referring to dictionary definitions from the ratification period, Justice Alito argues that the “normal and ordinary meaning” of the First Amendment’s bar on any law “prohibiting the free exercise of religion” would have encompassed laws “forbidding or hindering unrestrained religious practice or worship.”[37] This plain meaning, he observes, didn’t imply anything like Smith’s distinction “between laws that are generally applicable and laws that are targeted” against religion.[38] And in the colonial charters and state constitutions that normally inform our reading of the Bill of Rights, he continues, the “predominant model” was to protect religious liberty except where “the public peace” or “safety” was at risk.[39] As Alito pointed out, such a “carveout” would have been unnecessary if religious liberty only barred laws that were openly hostile to religious practice.[40] Just so, colonies’ and states’ practices reflected widespread support for religious accommodation, even from otherwise neutral laws (e.g., regarding the swearing of oaths, military service, and the payment of taxes to state-established churches).[41] Finally, Alito finds, historical scholarship defending Smith’s reading is “unconvincing” and “plainly insufficient to overcome the ordinary meaning of the text.”[42] Early court cases are scant and conflicted, and the parts of the First Amendment’s drafting history relied on by Smith’s supporters (e.g., the Founders’ decision not to include a provision exempting conscientious objectors from military service) can be explained on grounds that do not lend support to Smith.[43]

Justice Alito bolsters his interpretation of the Free Exercise Clause, and drives home the weaknesses of Smith, when he considers factors relevant to overturning any precedent: its reasoning, its consistency with other precedents, its workability, and developments in doctrine since it has been handed down.[44] On all four counts, he compellingly argues, Smith should no longer stand. In rejecting a constitutional claim to exemptions from neutral laws, Smith decided an issue that was never briefed or argued.[45] It gave no attention to the original meaning or history of the First Amendment, and offered spurious or half-hearted grounds for distinguishing several longstanding precedents.[46] Its evident and almost exclusive motivation was a concern that judicially recognized exemptions would be judicially unadministrable, but its own standard (requiring courts to determine if a law is non-neutral or non-generally applicable) had proven unwieldy to apply.[47] And it was squarely at odds with more recent decisions by the Court, which recognized or implied support for free exercise exemptions that Smith would never countenance.[48] Alito points, for example, to Hosanna-Tabor, where “the Court essentially held that the First Amendment entitled a religious school to a special exemption from the requirements of the Americans with Disabilities Act of 1990”; to Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which suggested that clergy members who cannot in good conscience officiate a same-sex wedding “would be entitled to a religious exemption from a state law” limiting “authority to perform a state-recognized marriage” to those “who are willing to officiate both opposite-sex and same-sex weddings”; and to Boy Scouts of America v. Dale, which “granted the Boy Scouts an exemption from an otherwise generally applicable state public accommodations law.”[49]

While only two other Justices (Thomas and Gorsuch) joined Alito’s Fulton opinion, another two (Barrett and Kavanaugh) expressed willingness to revisit Smith once it is clear what doctrines will replace it.[50] Alito therefore concludes his Fulton opinion by urging a return to the Court’s standard for exemptions under Sherbert, which required the Court to apply strict scrutiny to any law that substantially burdened religion. In Fulton he does not say much more about the contours of that new regime, but we get a more detailed picture from other opinions in which he discusses the application of RFRA and RLUIPA—which, as noted, sought to restore Sherbert’s doctrine, albeit in statutory form. Put together, in fact, these opinions may help forge the Justice’s legacy as an architect of the Court’s religious liberty doctrines in the twenty-first century, by guiding strict scrutiny analysis in free exercise cases post-Smith (and the application of important religious liberty statutes even now). I will focus on the two core questions under Sherbert-like analysis: (1) whether a law has imposed a substantial burden on religion; and (2) whether application of the law to the religious claimant serves a compelling state interest.

Start with Justice Alito’s understanding of substantial burden analysis, expressed clearly in his concurrence for Little Sisters of the Poor and his majority opinion in Hobby Lobby. In both cases, Christian employers had religious objections to providing insurance coverage of contraceptives (or just abortifacient ones, in Hobby Lobby), which the Obama administration had required of most large-scale employers.[51] The Little Sisters of the Poor, unlike the Green family, who owns Hobby Lobby, were not large-scale employers, but they objected to the accommodation for religious non-profits that the administration offered, believing that it would still make them complicit in the insurance coverage (just in a more roundabout way).[52] In his concurrence for the Little Sisters’ case, Alito argued that “substantial burdens” on religion should be determined by two factors: (1) whether there are “substantial adverse practical consequences” for the religious person who refuses to comply with the law; and (2) whether adherence to the law will “cause the objecting party to violate its religious beliefs, as it sincerely understands them.”[53] What courts should not do is second-guess the truth or reasonableness of the claimants’ beliefs on a “difficult and important question of religion and moral philosophy,” as he put it in Hobby Lobby: namely, when “it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”[54] “Arrogating the authority to provide a binding national answer to this religious or philosophical question” is simply off-limits to courts.[55]

Under RFRA as under Sherbert, once the Court has established that a law substantially burdens religion, it must apply strict scrutiny, which asks whether application of the law to the religious person is the most narrowly tailored, or least restrictive, means of serving a compelling state interest. On how to determine whether a claimed interest is compelling, Justice Alito has suggested first that the interest must fall within a narrow range of exceptionally weighty public goods (and his historical analysis of free exercise in Fulton may shed more light on this point). Second, reluctant to have courts impose their own view of how important an interest is, he has urged basing the “compellingness” inquiry on whether the jurisdiction in question really treats the interest as compelling, and whether other jurisdictions do. Third, he has stressed that under RFRA (and the same point may also apply under any Free Exercise Clause cases that could arise post-Smith), there must be a compelling interest specifically in the law’s application to a particular religious claimant (over her objections to compliance).

A discussion of the first requirement comes in Justice Alito’s opinions for Little Sisters of the Poor and Fulton. In Little Sisters, he reminds us of Sherbert’s insistence that “‘[o]nly the gravest abuses, endangering paramount interest’” could “‘give occasion for [a] permissible limitation’” on free exercise.[56] Fulton could be read as clarifying what it takes to justify a burden on religious liberty in particular. As noted above, Alito suggests there that in the Founding era, under colonial and state-constitutional protections for religious liberty, the only interests deemed compelling enough to justify limits on free exercise were those of “public peace and safety.”[57] And this was understood narrowly, he continues: it was not thought, as defenders of Smith have argued, that every form of conduct regulated by generally applicable laws is “necessary” to secure those conditions.[58] Rather, he points out, dictionary usage from the time suggests that the terms “peace” and “safety” were closely tied to relief from violence and war or threat of physical harm. And Blackstone’s list of “offenses against the public peace,” in contrast to his “catalog[ging]” of many offenses that “do not threaten” violence or physical harm (such as “cursing,” refusing to pay taxes for infrastructural repairs, or acting as a “common scold”), centered on behaviors that were either violent or incendiary, such as rioting, “unlawful hunting,” carrying “dangerous or unusual weapons,” and so on.[59] In short, a sound interpretation of the original meaning of the Free Exercise Clause would suggest that only the most foundational interests of any government—those of securing basic conditions necessary for public order and freedom from violence—can justify laws that restrict religious exercise without offering an exemption.

Second, in Little Sisters of the Poor, Justice Alito suggests that rather than judge compellingness for themselves, courts could examine whether the state issuing the rule in question really treats the interest as compelling:

If we were required to exercise our own judgment on the question whether the Government has an obligation to provide free contraceptives to all women, we would have to take sides in the great national debate about whether the Government should provide free and comprehensive medical care for all. Entering that policy debate would be inconsistent with our proper role, and RFRA does not call on us to express a view on that issue. We can answer the compelling interest question simply by asking whether Congress has treated the provision of free contraceptives to all women as a compelling interest.[60]

Along these lines, the Court found in Little Sisters that the federal government had failed to treat women’s interest in free contraception as compelling. This was clear from the numerous exemptions (for very small businesses, or companies with “grandfathered” insurance plans), as well as the government’s “fail[ure] to ensure that millions of women have access to free contraceptives” (by leaving out coverage, for example, of women “who do not work outside the home”).[61]

Alito has also suggested that courts look to the practices of other jurisdictions. In Holt v. Hobbs, which applied RLUIPA to vindicate a Muslim prisoner’s right to grow a beard, Alito’s opinion for the Court noted that “the vast majority of States and the Federal Government permit inmates to grow half-inch beards,” while the state at issue there—Arkansas—did not.[62] This, he suggested, increased Arkansas’s burden to establish that the interest in barring a half-inch beard is compelling: “[W]hen so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course.”[63]

Third, Justice Alito has stressed that the compelling interest inquiry must focus on the right unit of analysis. Under RFRA and RLUIPA, courts should ask whether the compelling interest requires applying the regulation to a particular claimant. Alito emphasizes this point both in Hobby Lobby and Holt. As he writes in Holt (citing Hobby Lobby),

RLUIPA, like RFRA, contemplates a “more focused” inquiry and “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.”. . . RLUIPA requires us to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants” and “to look to the marginal interest in enforcing” the challenged government action in that particular context.[64]

In sum, Justice Alito’s opinions in cases involving RFRA and RLUIPA claims offer several bright line rules for strict scrutiny analysis of religious freedom claims under federal statutory law. If the Court decides to restore in constitutional law something like these policies’ religious liberty protections (modeled after Sherbert, and requiring strict scrutiny wherever religion has been substantially burdened), its new interpretation of the Free Exercise Clause could be guided by these criteria.

II.             Advancing the “History and Tradition” Method of Establishment Clause Interpretation

In Establishment Clause jurisprudence, Justice Alito’s contributions run parallel to those discussed above. Just as he applied (and helped spell out the meaning of) Smith while treating Smith’s shortcomings as an impetus for proposing a better approach, so too he has worked with (and better specified) the Establishment Clause doctrine created in Lemon v. Kurtzman (and later cases using the “Lemon test”) while pushing the Court beyond Lemon’s pitfalls toward a more originalist approach.

In Lemon, the Court proposed that state action is an unlawful establishment of religion if it (a) lacks a secular purpose; (b) has the primary effect of advancing or inhibiting religion; or (c) fosters excessive entanglement between religion and government.[65] A later accretion was the “endorsement test,” which in Justice O’Connor’s telling asked whether a “reasonable observer” would think that the “challenged governmental practice conveys a message of endorsement of religion.”[66]

Echoing O’Connor, Justice Alito has emphasized that applications of this test should consider all relevant information available to the observer, including facts not immediately apparent, for example, to someone simply looking at a religious display. In his concurrence for Salazar v. Buono,[67] a case involving an Establishment Clause challenge to a World War I memorial cross on federal land in the Mojave Desert, Justice Alito urged that a reasonable observer would “be aware of the history and all other pertinent facts relating to a challenged display”—including, in that case, the fact that Congress had decided to transfer ownership of the land on which the cross stood to a private party, in exchange for another piece of land without the cross.[68] That transfer should be seen by the reasonable observer not as “an endorsement of Christianity” (as Justice Stevens argued in his dissent), but rather as a good “effort by Congress to address a unique situation and to find a solution that best accommodates conflicting concerns” about the memorial.[69]

In more recent establishment cases, the Court was asked to reverse Lemon. Justice Alito’s opinion for the majority in American Legion, a case that considered another World War I memorial cross, this time on public land in Maryland, is not unlike his concurrence in Fulton repudiating Smith’s interpretation of the Free Exercise Clause. For it highlights the shortcomings of the Court’s guiding precedent in Lemon and illustrates how an alternative approach reflected in more recent cases—here, a test focused on history and tradition—would resolve the issue at hand. Alito first points out the Lemon test’s inconsistency with longstanding (and long-accepted) practices in our nation’s history, including public references to God in various official contexts.[70] Next he cites many Justices, judges, and scholars who have lamented how unpredictable, indeterminate, and internally inconsistent the Lemon test’s outcomes have been.[71] Third, he focuses on problems peculiar to applying Lemon to public displays like the one at issue in American Legion—for example, the challenge of discerning the “purpose” of any longstanding display (under the first prong of the Lemon test), due to the age of the display and the evolution of its purpose over time to include new secular, historical, or cultural meanings.[72]

For these reasons, Alito declines to adhere to Lemon’s “grand unified theory of the Establishment Clause,” opting instead for the “more modest approach” of the Court’s more recent cases, which is rooted in the “particular issue at hand and looks to history for guidance.” In this vein, surveying official expressions of religiosity—in particular, legislative prayers—that were upheld in recent Supreme Court cases and date all the way back to the First Congress, Alito notes that these practices reflected “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.” In light of the long tradition of public religious expression that shares those features—and given the difficulty of applying Lemon (and in particular its “purpose” inquiry) to longstanding religious displays—Alito concludes that “[w]here categories of monuments, symbols, and practices with a longstanding history follow in that tradition [of tolerance and inclusivity], they are likewise constitutional.”[73]

Ultimately, American Legion stops short of expressly declaring Lemon dead for all purposes. Yet its aspersions on Lemon, its embrace of history and tradition as superior criteria, and its reasons for favoring that approach in religious-display cases were so forcefully stated that the Court’s next major case addressing Establishment Clause issues endorsed several lower court judges’ reading that American Legion had signaled the complete demise of Lemon.[74] Thus, in the Establishment Clause setting (with respect to Lemon), as in the free exercise setting (with respect to Smith), Alito has shown himself capable of developing doctrine, bringing to a head its internal tensions, and drawing on history and tradition to point the way to a sounder replacement doctrine.

One further analogy to Justice Alito’s thought on free exercise is worth noting: an acute sensitivity to the privileging of secular over religious reasons for various actions. As noted above, Alito has recognized that a law cannot be “neutral” toward religion if it exempts conduct chosen for secular reasons, but not comparable conduct chosen for religious reasons. That is because, however well-meaning, this disparity of legal treatment reflects an arbitrary devaluing of religious reasons. Along similar lines, Alito has emphasized in establishment cases that just as the imposition of exclusionary religious displays can signal favoritism toward a religion, so the removal of longstanding religious displays can signal “aggressive[] host[ility] to religion.”[75] This is true no matter how well-meaning the removal may be—in other words, even if the goal is to avoid excluding non-Christian observers, as Justices Ginsburg and Sotomayor suggested in their dissent in American Legion.[76]

III.           Robust Protection for Institutional Religious Freedom

During Justice Alito’s tenure, the Court has heard several cases involving a First Amendment doctrine that protects the freedom of religious institutions to govern themselves. Under the so-called “ministerial exception,” a religious entity’s decisions regarding the hiring and firing of its ministers are exempt from the reach of employment-antidiscrimination laws. Justice Alito has clarified the scope of this exception in his concurrence in Hosanna-Tabor and his majority opinion in Our Lady of Guadalupe School, both of which tie the meaning of a “minister” to an employee’s function or purpose within a religious institution. His clarifications have broadened the principle’s reach, to the benefit of more religious associations and especially those of less mainstream faiths.

Hosanna-Tabor involved a Lutheran school’s firing of one of its teachers, Cheryl Perich, who then sued under the Americans with Disabilities Act, claiming that she had been unjustly terminated for a newly diagnosed disability.[77] The school maintained that it had dismissed Perich on religious grounds, for her refusal to settle their disagreement over her employment outside the courts (which runs counter to Lutherans’ outlook on conflict resolution). A unanimous Court held that antidiscrimination laws could not be applied to regulate the school’s choice of teachers, who were “ministers” in the relevant sense. But the majority opinion avoided deeper elaboration of what it takes to count as a minister under this doctrine, content to focus on a few key facts in the case at hand, including the teacher’s formal title and formal commissioning as a minister.[78]

Justice Alito’s concurrence, joined by Justice Kagan, argues that the title of “minister” should be defined by an employee’s function, rather than other characteristics that could be interpreted too narrowly, to the exclusion of religious minorities. “Because virtually every religion in the world is represented in the population of the United States,” he writes, “it would be a mistake if the term ‘minister’ or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.”[79] Several roles—such as leadership, worship, or teaching—could ground ministerial status: “The ‘ministerial’ exception should . . . apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”[80]

Writing for the Court, Justice Alito spells out this interpretation further in Our Lady of Guadalupe School, which upheld the dismissal of two Catholic school teachers under the same doctrine. In that opinion, he again cautions against using too rigidly the criteria that had defined Cheryl Perich as a minister in Hosanna-Tabor (her title, her training, her self-presentation as a minister, and her educational role in conveying Lutheran beliefs to students). None of these features, Alito emphasizes, should be deemed “essential” to a ministerial position eligible for the exemption (as the court below had erroneously held). The scope of the ministerial role is tied to “what an employee does,” and clearly includes jobs focused on “educating young people in their faith, inculcating its teachings, and training them to live their faith”—all tasks that, in Alito’s telling, “lie at the very core of the mission of a private religious school.”[81] These distinctions have helped the Court articulate a broad vision of religious freedom that protects not only individuals but associations that are religiously affiliated or driven.

Conclusion: Justice Alito’s Legacy in Religion Jurisprudence

The guiding principles of Justice Alito’s religion jurisprudence might best be summarized as flexibility in the law’s accommodation of religion (Fulton), respect for religious pluralism and tradition (American Legion), and deference to institutional autonomy (Our Lady of Guadalupe School). His jurisprudential approach in turn mirrors these principles, balancing fidelity to the past with resourcefulness and openness to change or renewal, for the sake of religion law’s integrity. Future justices would do well to imitate his example in meeting legal challenges to religious liberty.

* Postdoctoral Fellow, Ethics & Public Policy Center. Ph.D., Princeton, 2020.

[1] 494 U.S. 872 (1990).

[2] 141 S. Ct. 1868 (2021).

[3] See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963).

[4] See Fulton, 141 S. Ct. at 1892–99 (Alito, J., concurring in judgment).

[5] Id. at 1898–1907.

[6] 573 U.S. 682 (2014).

[7] 574 U.S. 352 (2015).

[8] 140 S. Ct. 2367 (2020).

[9] See Lemon v. Kurtzman, 403 U.S. 602 (1971).

[10] See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983).

[11] 139 S. Ct. 2067 (2019).

[12] 142 S. Ct. 2407 (2022).

[13] See id. at 2427 (citing Am. Legion, 139 S. Ct. at 2079–81 (plurality opinion)).

[14] See id. at 2428.

[15] See id. at 2080–82.

[16] 565 U.S. 171 (2012).

[17] 140 S. Ct. 2049 (2020).

[18] 170 F.3d 359 (3d Cir. 1999).

[19] 42 U.S.C. §§ 2000bb-1(a)–(b), 2000bb-2 (2018) (invalidated in part by City of Boerne v. Flores, 521 U.S. 507 (1997)).

[20] 42 U.S.C. §§ 2000cc–2000cc-2 (2018).

[21] See Emp. Div. v. Smith, 494 U.S. 872, 884 (1990).

[22] 508 U.S. 520 (1993).

[23] Id. at 538.

[24] Fraternal Ord. of Police Newark v. City of Newark, 170 F.3d 359, 365 (3d Cir. 1999).

[25] Id. (emphasis added).

[26] Id.

[27] See id. at 366.

[28] Id.

[29] 141 S. Ct. 1294 (2021).

[30] Id. at 1296.

[31] Id.

[32] Id.

[33] Id. at 1297.

[34] Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021).

[35] Id. at 1884.

[36] Id. at 1894–1907.

[37] Id. at 1896.

[38] Id.

[39] Id. at 1901.

[40] Id. at 1903.

[41] See id. at 1905–06.

[42] Id. at 1907.

[43] Id. at 1907–12.

[44] Id. at 1912–24.

[45] Id. at 1912.

[46] Id. at 1912–15.

[47] Id. at 1917–23.

[48] Id. at 1915–16.

[49] Id.

[50] See id. at 1882–83 (Barrett, J., concurring).

[51] See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2373–75 (2020).

[52] Id. at 2376.

[53] Id. at 2389 (Alito, J., concurring).

[54] Burwell v. Hobby Lobby Stores, 573 U.S. 682, 724 (2014).

[55] Id.

[56] Little Sisters, 140 S. Ct. at 2392 (Alito, J., concurring).

[57] Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1902 (2021) (Alito, J., concurring in the judgment) (“[M]ore than half of the State Constitutions contained free-exercise provisions subject to a ‘peace and safety’ carveout or something similar.”).

[58] Id. at 1904.

[59] Id. at 1903–04.

[60] Little Sisters, 140 S. Ct. at 2392 (Alito, J., concurring).

[61] Id. at 2392–93.

[62] Holt v. Hobbs, 574 U.S. 352, 368 (2015).

[63] Id. at 369.

[64] Id. at 362–63 (internal citations omitted).

[65] Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

[66] Allegheny Cnty. v. ACLU, 492 U.S. 573, 630 (1989) (O’Connor, J., concurring in part and concurring in the judgment).

[67] 559 U.S. 700 (2010).

[68] Id. at 728 (Alito, J., concurring).

[69] Id.

[70] Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2080–81 (2019).

[71] Id. at 2081.

[72] Id. at 2081–85.

[73] Id. at 2089.

[74] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421, 2427 (2022).

[75] Am. Legion, 139 S. Ct. at 2085.

[76] Id. at 2107–08 (Ginsburg, J., dissenting).

[77] Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 565 U.S. 171, 178–79 (2012).

[78] Id. at 190 (“We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”).

[79] Id. at 198 (Alito, J., concurring).

[80] Id. at 199.

[81] Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2063–64 (2020).

Justice Alito: A Justice of Foxes and Hedgehogs – Hon. Amul Thapar

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Justice Alito: A Justice of Foxes and Hedgehogs

Hon. Amul Thapar^*

The great Oxford philosopher Isaiah Berlin once proposed that all great writers fall into one of two camps. Some are hedgehogs; some are foxes.[1] Hedgehogs “relate everything to a single central vision.”[2] Foxes, on the other hand, reject grand theories. They “pursue many ends, often unrelated and even contradictory.”[3] While hedgehogs tend to see the world in black-and-white, foxes see it in shades of gray.

Although Berlin later downplayed this essay, I suspect that his logic also applies to an age-old legal dispute: the split between rules and standards.[4] Those who favor rules, like Justice Scalia, encourage judges to lay down clear rules that can be applied across cases. They are the ultimate hedgehogs. Those who prefer standards, by contrast, are foxes. They take an all-things-considered approach which balances an array of factors with close attention to the particular facts of each case. Justice Breyer is a great example. As a champion of pragmatism, Justice Breyer looks to balancing tests and multi-factor standards to resolve the case before him.

So, where does Justice Alito fall? Many would no doubt say that he’s a fox, and there is some truth to that. In many contexts, Justice Alito openly acknowledges the limits of rules and the practical value of standards.[5] Those insights reflect his reminder that “judging is not an academic pursuit” but rather a “practical activity” with often life-altering consequences for the parties before us.[6]

But I think that’s only part of the story. When it comes to the separation of powers, I submit, Justice Alito typically resembles a hedgehog. In my view, separation-of-powers cases reveal his instinctive preference for rules over standards. Yet this preference is overlooked for a simple reason: Justice Alito rarely writes on a blank slate. Unlike, say, Justice Thomas, Justice Alito tends to take a thicker view of stare decisis. So, operating within the constraints of precedent, Justice Alito routinely refines the Supreme Court’s caselaw in ways that make it both more coherent and more predictable—in other words, more hospitable for hedgehogs.

* * *

When it comes to our Constitution, structure is king. The Bill of Rights is, of course, a rich guarantee of our most basic rights. But without structural limits on governmental power, each of its cherished rights would be little more than words on a page. Our Founders understood this. They knew firsthand the abuse that flows from the unchecked consolidation of power in the hands of one actor. For that reason, they made structural limits the cornerstone of our constitutional charter.[7] First, they divided powers between the federal government and the states. But they also divided powers within the federal government: the legislative power went to Congress, the executive to the President, and the judicial to the courts.

I can think of at least three reasons why rules are especially attractive for cases dealing with the separation of these powers. First, rules are more likely to restrain judicial overreach. The Founders understood that we should always expect government actors to expand their powers. And judges were no different. Indeed, for the Anti-Federalists—the leading critics of our constitutional order—the danger of kritarchy (rule by judges) loomed large. Brutus warned that “the supreme court under this constitution would be exalted above all other power in the government, and subject to no controul.”[8] He reasoned that judicial review and lifetime tenure were a dangerous mix:

There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.[9]

Although much has changed since the Founding, human nature has not. So, judges would do well to remember that, like other officials, we are not “angels.”[10] We must always scrutinize our decisions to ensure that we do not succumb to the temptation to wrest power from the political branches. Rules reduce that risk.[11]

Rules also enhance the public’s perception of our judicial system as impartial and incorruptible—no small matter when our decisions are backed by neither the sword nor the purse.[12] Too many Americans today think that judges act as faithful agents of one political party or the other. This skepticism would hardly be assuaged if the Court handed down a decision on Tuesday that distinguished a case decided on Monday by reasoning, “Well, Monday’s case featured four factors while today’s involves four factors plus one.” By contrast, it’s hard to think of a better advertisement for the rule of law than the Court’s articulation of a clear rule in one case that it sticks to in subsequent cases—no matter the parties or issues before them.

And there’s another reason bright-line rules are valuable in the separation-of-powers context. Judicial decisions in this arena tend to have lasting consequences. Whether we are resolving disputes between dueling sovereigns or between coordinate branches of the federal government, we are deciding how our government operates. Too often, this truth is forgotten. Journalists and court-watchers scour Supreme Court opinions like box scores, trying to figure out who’s up and who’s down. But that’s not the role of a judge. And rules remind us to think not just about the case before us today, but the cases that’ll come down years from now, when the facts might be different and the shoe on the other foot.

Justice Alito put this point nicely in a recent case. In Trump v. Vance, an elected state prosecutor in New York launched a criminal investigation of the sitting President.[13] As part of this investigation, the prosecutor sought to subpoena the President’s private records.[14] This was unprecedented. As Justice Alito lamented at the outset of his powerful dissent, the Court’s decision was “almost certain to be portrayed as a case about the current President and the current political situation.”[15] And true enough, that is how the media characterized it. But most people didn’t fully appreciate that the Court’s decision was not a ticket good for one ride only. As Justice Alito noted, Vance’s holding “will also affect all future Presidents—which is to say, it will affect the Presidency, and that is a matter of great and lasting importance to the Nation.”[16]

Insights like these pervade Justice Alito’s jurisprudence. And once we see things through this lens, we better understand his leading opinions on the separation of powers.

* * *

Justice Alito’s separation-of-powers jurisprudence rests on a recognition that the judge’s role is a limited one. His majority opinion in Hernandez v. Mesa embodies this judicial humility.[17] Hernandez also demonstrates his skill in disciplining doctrines that previously relied on nebulous standards.

To illustrate this point, however, it’s important to take a few steps back. Start with hornbook law. Federal courts “are not roving commissions”[18] tasked with writing and updating our laws; that is Congress’s job. With few exceptions, Congress must give plaintiffs the authority to come to court.[19] In the language of law, that means a plaintiff must have a cause of action.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, however, the Supreme Court broke new ground.[20] There, the Burger Court found for the first time that the Fourth Amendment supplied a cause of action for money damages when federal agents allegedly violate the Amendment.[21] The Burger Court then stretched Bivens’s logic, expanding its reach to cover violations of the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s bar on cruel and unusual punishment.[22] At the time, it appeared the Court would continue expanding Bivens until Bivens “became the substantial equivalent of 42 U.S.C. § 1983.”[23]

But allowing courts to find implied causes of action shifts significant power to the federal judiciary—power that the Founders intended would rest in the elected branches.[24] Co-opting this power created problems. After all, any “decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide.”[25] So any attempt at crafting the optimal liability regime must reckon with “a number of economic and governmental concerns” that are not easy to discern.[26] For instance, if an alleged constitutional violation flows from a complex law enforcement operation, which officers should bear the brunt of the liability? What mens rea standard should attach? And how will the projected costs and consequences of litigation be scored against their benefits? These are hard questions that can be answered only after balancing multiple factors against each other. And it is imperative that courts making these judgment calls get the balance exactly right. Unlike garden-variety state tort damages, the availability of a federal constitutional remedy can’t be undone by legislation. Once the courts have extended Bivens, we all must live with it.

In Hernandez, the Court was invited to expand Bivens once more, and the facts of that case made the invitation all the more alluring.[27] Sergio Adrián Hernández Güereca, a fifteen-year-old boy in Mexico, was playing with his friends near the border.[28] While they were playing, Jesus Mesa, Jr., a border patrol officer on American soil, shot and killed Hernández.[29] Citing Bivens, Hernández’s parents brought a damages suit alleging that Mesa had violated their son’s Fourth and Fifth Amendment rights.

Writing for the majority, Justice Alito declined the plaintiffs’ invitations to extend Bivens. In reaching this conclusion, Justice Alito did not merely rely on the judiciary’s institutional limitations—though those considerations are an important part of the opinion. Instead, he began with the basics. While the Court had previously recognized implied causes of action, Justice Alito declared that those decisions did not adequately consider “the tension between this practice and the Constitution’s separation of legislative and judicial power.”[30] Put aside whether judges would be good at figuring out the appropriate liability regime. For Justice Alito, the Constitution answered this question. Our constitutional charter channels the legislative power to Congress while “this Court and the lower federal courts . . . have only ‘judicial Power.’”[31] And the essence of lawmaking entails “balancing interests and often demands compromise.”[32] We risk upsetting these delicate balances when we infer a cause of action from statutory silence. And worst of all, we’d be straying out of our lane. As Justice Alito notes, in the post-Erie world, “a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress[].”[33] In other words, unless and until Congress creates a federal-officer analog for § 1983, we should handle Bivens claims with “caution.”[34]

These first-order principles also explain the Court’s exacting test for expanding Bivens. In Hernandez, Justice Alito signaled in no uncertain terms that lower courts should rarely, if ever, find the expansion of Bivens justified. Under Bivens, judges must ask two questions when deciding whether a cause of action exists. First, we ask whether the claim arises in a new context.[35] It’s not enough that the plaintiff points to the same constitutional provisions as those that have already grounded prior Bivens claims. Instead, we must ask whether this case is “meaningfully different.”[36] In finding that the facts of Hernandez arose in a new context, Justice Alito made it clear that the context is new if it differs in virtually any way from the Court’s previous Bivens decisions.

Then, we move to the second step—where the bulk of the analytical work is done. There, we “ask whether there are factors that counsel hesitation” before we engage in the “‘disfavored’ judicial activity” of extending Bivens.[37] And the reasons are many. In Hernandez, Justice Alito offered three such factors. First, judges must be doubly cautious before creating a Bivens remedy that intrudes on the political branches’ primacy in the realm of foreign affairs.[38] Second, Hernández’s claims implicated national security issues because border patrol agents defend our Nation against illegal immigration and trafficking.[39] Last, Justice Alito pointed to multiple statutes where “Congress has repeatedly declined to authorize the award of damages for injury inflicted outside our borders.”[40] Congress’s general pattern of limiting damages actions for injury inflicted abroad by government officials gave Justice Alito “further reason to hesitate about extending Bivens.”[41]

While Hernandez featured an array of factors that cut against recognizing a Bivens action, they all derived from a recognition of the judge’s modest role. Indeed, perhaps the entire second step of the Bivens inquiry can be reduced to a single question: “‘[W]ho should decide’ whether to provide for a damages remedy, Congress or the courts?”[42] And by Justice Alito’s lights, it’s hard to ever see when the answer would not be Congress.

* * *

Justice Alito’s opinion for the Court in Murphy v. NCAA also reveals his preference for bright-line rules.[43] This time, however, these principles cashed out in favor of the states rather than Congress. Murphy is also noteworthy because it shows how bright-line rules can be more administrable while also resolving doctrinal confusion.

In Murphy, the Court confronted the constitutionality of the Professional and Amateur Sports Protection Act (PASPA). PASPA made it unlawful for a state “to sponsor, operate, advertise, promote, license, or authorize by law” a sports-gambling scheme.[44]

New Jersey took issue with this and passed a law authorizing sports gambling in the Garden State. Neither the NCAA nor various professional sports leagues were happy with this. So, they sued to enjoin New Jersey’s law.[45]

The dispute invoked two constitutional doctrines. The first was preemption. Under the Supremacy Clause, federal law is superior to state law. Preemption simply requires state and federal judges to apply federal law rather than state law when the two conflict. The second was the anticommandeering doctrine. Though it sounds in deep-rooted principles of federalism, the doctrine emerged with New York v. United States and Printz v. United States, a pair of prominent Rehnquist Court decisions.[46] In New York, the Court struck down a federal law that required the states to either regulate the disposal of nuclear waste in line with federal standards or “take title” themselves.[47] Likewise, in Printz, the Court encountered a congressional statute requiring state and local law enforcement officials to perform background checks for prospective gun sales.[48] In striking down the law, the Court held that the federal government could not command the state’s officers to administer or enforce a federal regulatory program.[49] Taken together, these cases stand for the simple principle that states set state policy while the federal government sets federal policy.

Yet in the years leading up to Murphy, the two doctrines—preemption and anticommandeering—did not coexist easily.[50] Each threatened to swallow the other.[51] Many prominent scholars, however, reconciled these doctrines by taking a dim view of the anticommandeering doctrine.[52] On their view, the anticommandeering doctrine applies when Congress commands the states to affirmatively do something. By contrast, Congress’s preemption authority controls when it prohibits the states from doing something. As fans of federal supremacy, these scholars championed the affirmative-negative distinction on the ground that preemption would be a dead letter if the Constitution barred Congress from telling the states what they couldn’t do.

The NCAA’s two arguments in Murphy reflected this conventional wisdom. First, they defended PASPA as a preemption provision grounded in the Supremacy Clause. And second, they noted that PASPA did not require the states to lift a finger. In this regard, PASPA was unlike the statutes at issue in Printz and New York. Simply put, the case boiled down to a referendum on the affirmative/negative distinction for anticommandeering purposes. To be sure, this distinction promised simplicity at first glance. And it seemed like a bright-line rule. But writing for the Court, Justice Alito rejected this distinction.[53]

Why? Because a positive command can easily be rewritten in negative form. For instance, the affirmative command, “Do not repeal,” can be readily repackaged as a prohibition: “Repeal is prohibited.”[54] It was a mere “happenstance that the laws challenged in New York and Printz commanded ‘affirmative’ action as opposed to imposing a prohibition.”[55] Any test that would allow Congress to sidestep the Constitution’s prohibition against commandeering was no workable test at all. In two short lines describing PASPA, Justice Alito cut to the heart of why the affirmative-negative distinction cannot work: “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”[56]

Justice Alito found a brighter, more workable rule. And just like in Hernandez, Justice Alito reasoned from constitutional text and history. Under our Constitution, Congress’s legislative powers are limited. Thus, Congress can only exercise legislative power after it identifies the constitutional source of its authority. PASPA ran into the shoals for two related reasons. First, as Justice Alito noted, the Supremacy Clause is not an independent fount of legislative power for Congress. It is instead only a “rule of decision” for courts to apply after encountering conflicting state and federal laws.[57] And second, the Constitution only “confers upon Congress the power to regulate individuals, not States.”[58] Putting these steps together, Justice Alito announced that the appropriate distinction is between federal laws that regulate the people directly and federal laws that regulate the state’s regulation of the people. The former can constitutionally preempt state law while the latter is unconstitutional.

Justice Alito’s new test squared preemption with anticommandeering. The opinion also displays a keen appreciation for how the law interacts with real-world incentives. More specifically, Justice Alito makes two points in favor of a robust anticommandeering doctrine. First, the doctrine furthers political accountability.[59] When Congress directly regulates an area, it bears total responsibility for the regulation’s benefits and burdens. That enables voters to know who to blame (or praise) for the regulation’s consequences. By contrast, if a State imposes a regulation only under Congress’s command, then “responsibility is blurred.”[60] A confused voter might understandably, yet unfairly, hold his state representatives accountable for policies that Congress concocted. And savvy politicians would surely exploit such ambiguities.[61] Second, the anticommandeering doctrine prevents federal overreach. When Congress directly implements a policy, it must tally its benefits against the costs of enforcement and administration. And the prospect of these costs constrains Congress. But absent an anticommandeering doctrine, Congress could skip past this limit by enlisting the states to administer and enforce a law in place of the federal government.[62] Indeed, Justice Alito found it “revealing that the Congressional Budget Office estimated that PASPA would impose ‘no cost’ on the Federal Government.”[63] In other words, without the separation of powers, Congress could run up the tab on today’s fashionable policy proposals while requiring the states to pay the bill tomorrow.

* * *

In most separation-of-powers cases, the Justices do not approach the issue in a vacuum. Instead, they inherit precedent. In that sense, Ortiz v. United States was a rare exception.[64] So I don’t think it’s a coincidence that Ortiz also offers one of the most vivid examples of Justice Alito’s preference for rules over standards in structural cases.

Like many defendants each year, Keanu Ortiz was convicted for possessing and distributing child pornography.[65] But here there was a twist: Ortiz’s trial didn’t take place in a federal civilian court. Instead, until he reached the Supreme Court, Ortiz’s case was tried by a court-martial. A panel of the Air Force Court of Criminal Appeals affirmed his conviction and so did the Court of Appeals for the Armed Forces (CAAF).[66] Across these proceedings, Ortiz brought several statutory and constitutional challenges to his conviction that are not relevant here.

Instead, when Ortiz’s appeal reached the Supreme Court, Justice Alito homed in on a more fundamental question. Did the Supreme Court even have jurisdiction to hear Ortiz’s appeal? And that question—first raised by Professor Aditya Bamzai in a brilliant amicus brief—was a “new one” for the Justices.[67] The Court had “previously reviewed nine CAAF decisions without anyone objecting that [it] lacked the power to do so.”[68]

To understand the problem, let’s start with the basics. There are two paths to the Supreme Court. First, a small set of cases qualify under the Court’s original jurisdiction. Every other case must invoke the Court’s appellate jurisdiction. And under Supreme Court precedent, Article III’s grant of appellate jurisdiction only empowers the Court to hear appeals from a tribunal that exercises the “judicial power.” All agreed on this point. But which entities exercise judicial power? Some examples readily come to mind. When the Sixth Circuit decides a case, for example, the Court has appellate jurisdiction to review our decision. That’s true for state courts too.[69] In Ortiz, the Court had to decide whether the same holds true for the military-tribunal system.

The majority found jurisdiction after considering “the judicial character and constitutional pedigree of the court-martial system.”[70] The Court took a functionalist path to reaching this conclusion. In particular, the Court noted the similarities between the federal courts and the military justice system. Governed by the same body of federal law, the military tribunals already afforded service members “virtually the same” procedural protections as those that defendants typically enjoy in federal and state courts.[71] For those reasons, the Court has long held that the “valid, final judgments of military courts, like those of any court of competent jurisdiction[,] have res judicata effect and preclude further litigation of the merits.”[72] Indeed, “the jurisdiction of [military] tribunals overlaps significantly with the criminal jurisdiction of federal and state courts.”[73] And the comparisons between the military courts and their civilian counterparts extend to sentence ranges and multiple layers of appellate review.

The Court’s logic seems reasonable. After all, if you “see a bird that walks, swims, and quacks like a duck, you call that bird a duck.”[74] Surely the same rationale can apply to determining what entities wield the judicial power. But Justice Alito didn’t agree. Instead, he relied on the Constitution’s text and structure. Since the Founding, military tribunals “have always been understood to be Executive Branch entities that help the President.”[75] But if the military courts are part of the Executive Branch—a point no one disputed—then how could they exercise the judicial power? After all, “Article III of the Constitution vests ‘[t]he judicial Power of the United States’—every single drop of it—in ‘one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’”[76] And for Justice Alito, the federal judicial power can be exercised only by “tribunals whose judges have life tenure and salary protection.”[77]

This categorical rule has obvious merits. For starters, it’s easily administrable. The majority’s test, by contrast, invites difficult line-drawing questions. For instance, could Congress provide for direct Supreme Court review of garden-variety administrative agency decisions from, say, the Social Security Agency? Would that depend on the panoply of procedural rights available to parties in the administrative hearing? And if that’s true, couldn’t Congress overwhelm the Supreme Court by requiring the Justices hear every single appeal that arises from the constellation of non-Article III tribunals that already exist?

Besides workability, Justice Alito’s argument also sounds in the internal logic of separation of powers. As judges, we do not, of course, have the purse or the sword at our disposal. But the Constitution does impose one requirement and two privileges on the judicial branch. We can only be appointed after both presidential nomination and Senate confirmation. In return, we are granted life tenure and salary protections. We should not underestimate the importance of these designs. The Founders expected them to ensure judicial independence and impartiality. Thus, it would make sense if federal judges were the only federal officials tasked with exercising the judicial power to say what the law is. Or as Professor David Currie put it, “The tenure and salary provisions of Article III can accomplish their evident purpose only if they are read to forbid the vesting of the functions within its purview in persons not enjoying those protections.”[78]

* * *

Consider another example. In recent years, few areas of law have seen as much renewed focus as the unitary executive theory of presidential power.[79] The idea is simple. As then-Judge Alito explained it, the unitary executive theory posits “that all federal executive power is vested by the Constitution in the President.”[80] And like other defenders of the theory, then-Judge Alito argued that the unitary executive model “best captures the meaning of the Constitution’s text and structure.”[81]

Indeed, the words of Article II alone seem all but dispositive. The Vesting Clause makes clear that “[t]he executive [p]ower shall be vested in a President of the United States.”[82] Meanwhile, the Take Care Clause entrusts the President with the duty to “take [c]are that the [l]aws be faithfully executed.”[83] Taken together, this language tells us that the President is ultimately responsible for everything that takes place within the Executive Branch. To be sure, as Justice Alito explained in his confirmation hearings, the unitary executive theory does not scope the metes and bounds of executive power. But it does tell us that any power which falls within the executive’s prerogative must be under the Commander-in-Chief’s control.

This has important implications in the officer-removal context in particular. Advocates of the unitary executive theory have long bristled at Humphrey’s Executor v. United States.[84] In Humphrey’s Executor, the Court blessed Congress’s ability to impose statutory restrictions on the President’s power to remove policymakers at the helm of so-called independent agencies. For many unitary executive theorists, this doctrine represents a “serious, ongoing threat” that “subverts political accountability and threatens individual liberty.”[85]

In a series of cases, the Court has pared back Congress’s ability to insulate executive officers from presidential removal. In both Free Enterprise and Seila Law, Justice Alito joined the majority in refusing to extend Humphrey’s Executor to new contexts.[86] In Collins v. Yellen, the latest in this series, Justice Alito wrote the majority.[87] And the shift from Seila Law to Collins illuminates Justice Alito’s ability to discipline doctrine by minimizing ambiguities.  

In Seila Law, the Court invalided a law limiting the President’s authority to remove the director of the Consumer Financial Protection Bureau (CFPB). The CFPB emerged from the Great Recession with the mandate to combat “unfair, deceptive, or abusive” acts and practices in consumer finance.[88] Congress intended the CFPB to operate as an independent agency like the agencies the Court blessed in Humphrey’s Executor. But the CFPB differed from the agencies at issue in Humphrey’s Executor in one important respect. While most independent agencies are led by multimember commissions or boards, the CFPB was headed by a single official. Appointed by the President and confirmed by the Senate, that official serves a five-year term. Congress also ensured that the CFPB would be provided with an independent source of funding that circumvented the typical appropriations process.[89] In short, “Congress deviated from the structure of nearly every other independent administrative agency” in the nation’s history.[90]

The Seila Law Court recognized “[t]he entire ‘executive Power’ belongs to the President alone.”[91] And the President’s removal power flows from Article II’s text. If it is the President who ultimately bears responsibility to enforce the laws, then surely the President must have the power to remove executive officials that do not represent him. Anything else would allow executive officials to flout the President’s wishes. That could cripple the Presidency. “Without [removal] power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”[92]

Though the Court embraced the unitary executive theory in Seila Law, the decision was narrow. Rather than strike down Humphrey’s Executor, the Court only declined to extend it to reach the “new situation” of “an independent agency led by a single Director and vested with significant executive power.”[93] In other words, there was a “standing athwart history, yelling [s]top” element to the decision. It also raised the question of when an agency wields “significant executive power.” In some instances, like the CFPB, the answer is self-evident. But one can imagine the difficulties lower courts would have in figuring out which agencies only exert “insignificant” executive power.

Fortunately, Justice Alito clarified the doctrine a year later. In Collins, the question was whether the Director of the Federal Housing Finance Agency (FHFA) could only be removed by the President for cause. The Court-appointed amicus sought to distinguish Seila Law by, among other things, contending that the FHFA’s authority was more circumscribed than the CFPB’s. More specifically, the amicus pointed out that the FHFA administers only one statute while the CFPB administered nineteen. Similarly, the CFPB directly regulates millions of individuals and businesses while the FHFA regulates a small number of government-sponsored enterprises.[94]

But Justice Alito discarded the “significance” inquiry. Writing for the majority, he noted that the President’s removal power is not a sliding scale that adjusts with the “the nature and breadth of an agency’s authority.”[95] Congress acts unconstitutionally when it insulates an agency head from the President’s control irrespective of the agency’s size or functions. The Constitution does not countenance structural violations simply because they could have been worse. Moreover, he highlighted the “severe practical problems” that would arise from requiring courts to discern which agencies are important and which agencies can fall by the constitutional wayside.[96] The FHFA’s comparison with the CFPB is illustrative. While the amicus made credible arguments that the CFPB is more influential, Justice Alito identified several arguments that cut in the other direction.[97]

Once again, Justice Alito justified his favored rule by recognizing its accountability benefits. Justice Alito emphasized that the President, unlike agency officials, is elected.[98] This point might seem obvious. But it has important implications. Without presidential control, the executive branch bureaucracy could run amok with minimal oversight from anyone accountable to the voters.

Put these cases together and we see that Justice Alito clarifies every area of the law that reaches his desk. We also see his penchant for rules over standards most clearly when he writes separately or in dissent. Of course, Justice Alito does not devise these rules in a vacuum. Nor do they flow from his policy views. Instead, he is a methodological pluralist. He begins with the Constitution’s text, history, and structure. And he stops there too when the answer is definite. But he is also able to weave these first principles with the precedent he inherits.

* * *

Justice Alito’s favor for rules is not absolute. Ever the humble Justice, he recognizes that sometimes the law forces courts to reject bright-line rule. That’s particularly true when the proposed rule would transfer power from properly accountable bodies to the federal courts. For example, Brnovich v. DNC, featured a challenge to two neutral Arizona laws—(1) the out-of-precinct policy and (2) a prohibition on third-party ballot collection.[99] Along with a host of constitutional claims, the plaintiffs alleged that the laws’ disparate impact on minority voters violated section 2 of the Voting Rights Act (VRA). Brnovich marked the first guidance that the Court had issued on how we should assess the incidental burdens of facially neutral time, place, or manner voting regulations under section 2 of the VRA.

Section 2(a) of the VRA, as amended in 1982, prohibits states from passing laws “in a manner which results in a denial or abridgment of the right . . . to vote on account of race or color.”[100] And its neighboring provision tells us what must be shown to prove a violation. It requires consideration of “the totality of circumstances” in each case and demands proof that the State’s political processes are not equally open to participation by members of a protected class.[101]

This provision has been the source of endless confusion and litigation in voter-dilution cases. Indeed, in Thornburg v. Gingles, the leading case, the Court threw out at least nine famously open-ended factors for judges and litigants to squabble over.[102]

But Justice Alito did not blindly follow the approach set out in Gingles. Instead, he began at the ground floor by asking what the text meant at the time of the statute’s enactment. Brnovich is an excellent example of what Professor John McGinnis calls “a statutory analogue to originalism.”[103] Along with employing the traditional tools of textualism, Justice Alito keyed in on the VRA’s statutory history, historical context, and expected applications to ascertain Section 2’s meaning.

After tilling these fields, Justice Alito concluded that the statute aimed at ensuring that a state’s political processes must be “equally open to minority and non-minority groups alike.”[104] But Justice Alito did not create a bright-line rule for courts to use in determining when a facially neutral election regulation remains “equally open” for all Americans.[105] He made that clear at the outset after disclosing that the Court had received at least ten proposed tests for how to implement section 2’s imprecise language from the parties and amici.[106]

Instead, to inform future cases, Justice Alito announced a standard employing five guideposts—each of which “stem[med] from the statutory text”[107]: (1) the size of the burden on voters beyond mere inconvenience; (2) the law’s departure from “standard practice when the statute was amended in 1982”; (3) the size of the disparity; (4) the alternative means of voting other than the one burdened by the challenged policy; and (5) the State’s interest in promulgating the challenged policy.[108]

Three insights from Brnovich are worth singling out. First, this is an example of how Justice Alito does not blindly pursue rules for their own sake. If the Court was looking for a bright-line rule to adopt in Brnovich, there were plenty to choose from. Indeed, as he noted, the various parties and amici had proposed no fewer than ten tests for resolving such cases. But Justice Alito declined to choose a winner among them as this case was the Court’s “first foray into the area.”[109] This prudence is understandable. The stakes for picking the right rule in this domain were extraordinarily high. One notable test, for example, would have required the State to run the gauntlet of strict scrutiny for every neutral voting regulation that imposes a disparate burden on certain voting populations. Its adoption would likely have led to the invalidation of hundreds of state laws that would have been considered noncontroversial the day the 1982 amendment to the VRA had been passed. What’s more, the statute expressly calls on courts to consider the “totality of circumstances.”[110] That language directs courts to make holistic calls that turn on multiple considerations—that is, it calls for a standard rather than a rule. Justice Alito heeded that statutory instruction.

Second, Justice Alito looks to historical context and common sense as backstops to discipline his textual analysis. The portion of the VRA at issue in Brnovich is not a model of legislative clarity. And reasonable minds can read its provisions broadly. But when analyzing today’s regulations, we would be wise to compare them to the standard practices in 1982 when Congress made the relevant amendments to the VRA. After all, it’s unlikely that “Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.”[111] This logic is a bedrock principle of statutory interpretation and the separation of powers. We respect Congress when we assume that it does not intend to upend existing regulatory schemes using only vague terms. In other words, we don’t expect Congress to hide elephants in mouseholes.

Third, Brnovich is a model of judicial humility in our federalist system. Election regulation is one of the State’s core prerogatives.[112] Federal judges must be cautious before we wrest this power from state officials through hawkish oversight, especially where Congress has not clearly instructed that we do so. That does not mean we should grant the states knee-jerk deference, of course. But it does mean taking the State’s interests seriously. Justice Alito did just that in Brnovich. In defending its laws, Arizona invoked its interest in preventing electoral fraud and preserving the perceived legitimacy of its elections. These are entirely legitimate interests. Indeed, given that elections are the lifeblood of a democracy, those interests may be among the State’s most important. The Ninth Circuit thought otherwise “in large part because there was no evidence that fraud in connection with early ballots had occurred in Arizona.”[113] But election fraud has a storied history in American political life. So, as Justice Alito recognized, every State has a right to learn from history and take necessary prophylactic steps. And those State interests rightly fall within the “totality of circumstances” to be considered under section 2 of the VRA.

* * *

Yale historian John Lewis Gaddis, a keen student of grand strategy, suggests that great statesmen couple the hedgehog’s sense of direction with the fox’s sensitivity to surroundings.[114] Justice Alito’s greatness as a jurist could be described in similar terms. And this blend is often on show when Justice Alito writes in a separation-of-powers case. The Constitution’s text, history, and structure are his touchstones. But Justice Alito’s mastery of doctrine and keen sensitivity for how the law operates on the ground allows him to repair one area of neglected doctrine after another. Hedgehogs and foxes alike have much to learn from his opinions.

And for all this and much more, we are his beneficiaries.

^* Judge, United States Court of Appeals for the Sixth Circuit.

[2] John Lewis Gaddis, On Grand Strategy 4 (2018).

[3] Id.

[4] There is a longstanding debate about whether legal doctrines should cash out as rules or standards. There are merits to both approaches in particular settings. But I should put my biases on the table. I tend to stand with Justice Scalia—a pretty good place to stand—in favoring rules. As a lower-court judge, I know firsthand that rules are usually much easier to apply than standards. Rules can also ensure that law is applied in an evenhanded and predictable manner. At the same time, however, I know that every judge, no matter where their sympathies lie, will invariably be forced to employ both rules and standards. That is our lot in life. Even Justice Scalia—never one to shy from a fight—recognized that “[w]e will have totality of the circumstances tests and balancing modes of analysis with us forever.” Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1187 (1989); see Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992).

[5] See Steven Menashi, The Prudent Judge, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 16 (2023); Andrew Oldham, Justice Alito on Criminal Procedure, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 19 (2023); Kate Stith, Justice Alito on Criminal Law, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 18 (2023).

[6] Samuel A. Alito, Jr., Associate Justice, U.S. Sup. Ct., Manhattan Institute Walter B. Wriston Lecture: Let Judges Be Judges (Oct. 13, 2010).

[7] See, e.g., Bowsher v. Synar, 478 U.S. 714, 722 (1986) (“Even a cursory examination of the Constitution reveals . . . that checks and balances were the foundation of a structure of government that would protect liberty.”).

[8] Brutus, XV, in 2 The Complete Anti-Federalist 437–38 (Herbert J. Storing ed., 1981).

[9] Id. at 438.

[10] The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961).

[11] See John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747 (2017).

[12] The Federalist No. 78, at 523 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

[13] 140 S. Ct. 2412, 2420 (2020).

[14] Id. at 2429.

[15] Id. at 2439 (Alito, J., dissenting).

[16] Id.

[17] 140 S. Ct. 735 (2020).

[18] Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973).

[19] See, e.g., Davis v. Passman, 442 U.S. 228, 239 (1979); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

128 (2014).

[20] 403 U.S. 388 (1971).

[21] Id. at 389.

[22] See, e.g., Davis, 442 U.S. at 228 (holding that Fifth Amendment violations confer a cause of action and money damages);

Carlson v. Green, 446 U.S. 14 (1980) (holding that Bivens does not foreclose actions for money damages under the Eighth

Amendment).

[23] Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1139 (2014).

[24] See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (citation omitted).

[25] Id. at 1858.

[26] Id. at 1856.

[27] See Hernandez v. Mesa, 140 S. Ct. 735, 740 (2020).

[28] Id. at 740.

[29] Id.

[30] Id. at 741.

[31] Id. (quoting U.S. Const. art. III, § 1).

[32] Id. at 742.

[33] Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020).

[34] Id. One other option, of course, was to go all the way and overturn Bivens. And that’s what Justice Thomas called for in a concurrence joined by Justice Gorsuch. Id. at 750 (Thomas, J., concurring). But in writing for the majority, Justice Alito limited Bivens’s reach while providing judicially manageable instructions for lower courts and litigants.

[35] Id. at 743.

[36] Id. at 743–44.

[37] Id. at 742–44 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)).

[38] Id. at 744.

[39] Hernandez v. Mesa, 140 S. Ct. 735, 746 (2020).

[40] Id. at 747.

[41] Id. at 749.

[42] Id. at 750 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)).

[43] 138 S. Ct. 1461 (2018).

[44] Id. at 1470 (quoting 28 U.S.C. § 3702(1) (2012)).

[45] Id. at 1471.

[46] New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997).

[47] 505 U.S. at 153.

[48] 521 U.S. at 902.

[49] Id. at 925–26.

[50] See generally Edward A. Hartnett, Distinguishing Permissible Preemption from Unconstitutional Commandeering, 96 Notre Dame L. Rev. 351 (2020).

[51] See id. at 356.

[52] See Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. Ct. Rev. 71, 89–94 (1999); Mark Tushnet, Globalization and Federalism in a Post-Printz World, 36 Tulsa L.J. 11, 27–28 (2000); see also City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999).

[53] Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018).

[54] Id. at 1472.

[55] Id. at 1478.

[56] Id.

[57] Id. at 1479 (quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015)).

[58] Id. (quoting New York v. United States, 505 U.S. 144, 166 (1992)).

[59] Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018).

[60] Id.

[61] Id.

[62] Id.

[63] Id. at 1484.

[64] 138 S. Ct. 2165 (2018).

[65] Id. at 2167.

[66] Id. at 2171–72.

[67] Id. at 2173.

[68] Id.

[69] See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).

[70] Ortiz v. United States, 138 S. Ct. 2165, 2173 (2018).

[71] Id. at 2174 (quoting 1 David A. Schlueter, Military Criminal Justice: Practice and Procedure §§ 1–7, at 50 (LexisNexis, 9th ed. 2015)).

[72] Id. (alteration in original) (quoting Schlesinger v. Councilman, 420 U.S. 738, 746 (1975)).

[73] Id. at 2174–75.

[74] Ortiz v. United States, 132 Harv. L. Rev. 317, 317 (2018).

[75] Ortiz, 138 S. Ct. at 2190 (Alito, J., dissenting).

[76] Ortiz v. United States, 138 S. Ct. 2165, 2190 (2018) (quoting U.S. Const. art. III, § 1).

[77] Id.

[78] David Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 121 (1985).

[79] See, e.g., Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477 (2010).

[80] John Harrison, The Unitary Executive and the Scope of Executive Power, 126 Yale L.J.F. 374, 374 n.1 (2017).

[81] Id.

[82] U.S. Const. art. II, § 1, cl. 1.

[83] Id. § 3.

[84] 295 U.S. 602 (1935).

[85] Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2219 (2020) (Thomas, J., concurring in part and dissenting

in part).

[86] See id. at 2183; Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477 (2010).

[87] See 141 S. Ct. 1761 (2021).

[88] Seila Law LLC, 140 S. Ct. at 2193 (quoting 12 U.S.C. § 5536(a)(1)(B) (2018)).

[89] See id. at 2191–94.

[90] Id. at 2191.

[91] Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020) (quoting U.S. Const. art. II, § 1, cl. 1).

[92] Id. at 2191 (quoting Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477, 514 (2010)).

[93] Id. at 2201 (quoting Free Enter. Fund, 561 U.S. at 483).

[94] Collins v. Yellen, 141 S. Ct. 1761, 1784 (2021).

[95] Id.

[96] Id.

[97] Id. at 1784–85.

[98] Id. at 1784.

[99] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).

[100] 52 U.S.C. § 10301(a) (2018).

[101] Id. § 10301(b).

[102] 478 U.S. 30, 36–37 (1986).

[103] John McGinnis, The Contextual Textualism of Justice Alito, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 14, *2 (2023).

[104] Brnovich, 141 S. Ct. at 2337 (quoting § 10301(b)).

[105] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021) (quoting § 10301(b)).

[106] Id. at 2336.

[107] Id. at 2342.

[108] Id. at 2338–40.

[109] Id. at 2336.

[110] 52 U.S.C. § 10301(b) (2018).

[111] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2339 (2021).

[112] Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501 passim (2021).

[113] Brnovich, 141 S. Ct. at 2348.

[114] Gaddis, supra note 2.