{"id":2709,"date":"2023-04-24T10:05:04","date_gmt":"2023-04-24T14:05:04","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2709"},"modified":"2025-12-22T15:21:32","modified_gmt":"2025-12-22T19:21:32","slug":"introduction-the-jurisprudence-of-justice-samuel-alito-robert-p-george","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/introduction-the-jurisprudence-of-justice-samuel-alito-robert-p-george\/","title":{"rendered":"Introduction: The Jurisprudence of Justice Samuel Alito \u2013 Robert P. George"},"content":{"rendered":"\n
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Download a PDF<\/a><\/div>\n<\/div>\n\n\n\n

Introduction: The Jurisprudence of Justice Samuel Alito<\/h2>\n\n\n\n

Robert P. George*<\/a><\/strong><\/p>\n\n\n\n

Introduction<\/h2>\n\n\n\n

Samuel A. Alito, Jr. was sworn into office as an Associate Justice of the Supreme Court of the United States on January 31, 2006. As we can say with the benefit of hindsight, that proved to be one of the most pivotal moments in the Supreme Court\u2019s modern history, with deep and lasting effects on our constitutional law and culture, as well as on the nation as a whole. Justice Alito filled the seat vacated by Sandra Day O\u2019Connor. Over the course of her 25-year tenure, O\u2019Connor had at times departed from the text and original public understanding of the Constitution in the service of evolving values or a professed concern for the Court\u2019s public standing. Most notably, on both grounds, O\u2019Connor in 1992 joined Justices Anthony Kennedy and David Souter to uphold the abortion right fabricated in 1973 in Roe v. Wade<\/em>.[1]<\/a><\/p>\n\n\n\n

Over his own more than 15 years on the Court, Alito has consistently honored our longstanding legal traditions and the text, logic, structure, and original understanding of the Constitution. This comes as no surprise; Alito had established himself on the Third Circuit as a judge \u201cboth admired and assailed for his conservative judicial philosophy\u201d[2]<\/sup><\/a> (as some today characterize a policy of respect for the Constitution\u2019s text and history). Once on the Supreme Court, Alito\u2019s judicial philosophy changed not a whit even in high-profile cases, where the pressure from intellectuals, journalists, and other cultural elites hits its peak. Instead, Alito\u2019s opinions\u2014whether for the majority or in concurrence or dissent\u2014have promoted the rule of law by honoring the text, logic, structure, and historical understanding of the Constitution as a whole and of its specific provisions. And if Casey<\/em> captures much about his predecessor\u2019s approach, the best distillation of Alito\u2019s own tenure is and will surely remain his opinion for the Court overturning Casey<\/em> and Roe<\/em> in Dobbs v. Jackson Women\u2019s Health Organization<\/em>.[3]<\/a> That opinion showcased his acumen and precision, his fidelity to the Founding, and his courage under enormous pressure\u2014the unprecedented leak of a draft opinion, death threats, offensive and often intimidating protests at the Justices\u2019 homes, and an assassination plot against one of them.<\/p>\n\n\n\n

Now more than ever, that jurisprudence and judicial temperament deserve a closer look. So, it is my especially great honor to introduce this collection of Essays offering the most sustained and systematic analysis of Justice Alito\u2019s work over 30 years on the bench and 16 terms on the Supreme Court. In each Essay to follow, a prominent legal scholar or leading jurist analyzes Alito\u2019s general approach to law or his thought on substantive areas ranging from criminal law and federal courts to constitutional and statutory interpretation.[4]<\/sup><\/a><\/p>\n\n\n\n

While the focus of this collection is Justice Alito\u2019s jurisprudence, certain vignettes from his personal life supply important context. Alito has a penchant for focusing on the practical and particular in each decision, so it is no surprise that, as Adam White<\/strong> recounts, the young Alito first encountered a lofty legal ideal\u2014the Supreme Court\u2019s \u201cone person, one vote\u201d mandate\u2014through his father\u2019s work to implement it on the ground by drawing new district lines for New Jersey.[5]<\/a> The senior Alito had been raised by poor Italian-American immigrant parents, attended college through the kindness of a benefactor, fought for his country in World War II, and then served a non-partisan role in the New Jersey Legislature. The image of his son hearing Mr. Alito\u2019s mechanical adding machine clank away late into the night is a portrait of the quiet personal and professional virtues that Alito, Jr., would carry into the rest of his life.<\/p>\n\n\n\n

Indeed, Alito\u2019s whole career reflects his commitment to finding the law as it is and grappling with its meaning from the perspective of ordinary people who must live under its rule. As Professor Kate Stith<\/strong> observes, Alito has spent his whole adult life in the public sector, serving in positions defined by ethical obligations and rule of law norms\u2014as an Army officer, government lawyer, prosecutor, and then judge.[6]<\/a> Alito got his start as a clerk for Judge Leonard Garth on the Third Circuit who instilled in him respect for precedent and attention to factual details. Alito\u2019s career coincided with Judge Garth\u2019s a second time, years later, when they served together as circuit judges. Judge Garth later testified that what made Alito a \u201csound jurist\u201d was his respect for \u201cthe institutions and the precepts that led to the decisions in the cases under review\u201d and his sense of \u201cfairness,\u201d \u201cjudicial demeanor,\u201d and \u201ccommitment to the law,\u201d which \u201cdid not permit him to be influenced by individual preferences or any personal predilection.\u201d[7]<\/sup><\/a><\/p>\n\n\n\n

Most strikingly, Justice Alito\u2019s rise to prominence never came at the expense of his humility or unwavering civility. Before his confirmation, the New York Times<\/em> wrote that Alito had demonstrated \u201ccivility in engaging ideological opponents\u201d during his years at left-leaning institutions such as Yale Law School.[8]<\/sup><\/a> Third Circuit Judge Stephanos Bibas<\/strong> reports that Alito\u2019s reputation as a smart, fair, and humorous circuit judge respected and liked by all remains fresh in the memory of his former colleagues.[9]<\/a> Indeed, seven of those colleagues\u2014including judges nominated by presidents of both parties\u2014testified before the Senate in support of Alito\u2019s nomination to the Supreme Court. Those who have worked for him also attest that he is singularly solicitous of subordinates, bending over backward to lighten their load. He returns drafts of opinions on Mondays, not Fridays, so his law clerks can spend the weekend with their families; readily takes on independent research or the whole burden of preparing for a case if the assigned clerk has had something come up; chides clerks whom he finds in chambers on a son or daughter\u2019s birthday; and (for better or worse) scrupulously avoids expressing the slightest hint of criticism or displeasure with assistants or clerks.<\/p>\n\n\n\n

As other points recalled by Judge Bibas show, and my own interactions with Justice Alito and those of our mutual friends confirm, he is also self-effacing to a degree that is remarkable for anyone, much less for someone in the highest echelons of public life. In an age of moral preening, he is constitutionally incapable of virtue-signaling. He never does anything calculated to draw attention to himself or enhance his image and chafes at attention from others (as I can attest, based on my experience preparing this symposium!). All of this makes Alito a sign of contradiction in a culture where, as Yuval Levin has observed, public figures use institutions as platforms for performance, molding them for their private purposes rather than being molded by them to serve the public good.[10]<\/a> Alito is, in this best and highest sense, an institutionalist\u2014submitting himself to the internal disciplines, duties, and defining ends of the judicial art, without regard to the impact on his personal image or on the Court\u2019s popularity in fluctuating polls. Observers of all stripes would concede that he is driven by nothing but his deeply held principles and ideals.<\/p>\n\n\n\n

This self-forgetfulness and singleness of purpose have liberated Justice Alito. They have enabled the courage that has defined his tenure. The Justices, breathing the same air as everyone else in our hyper-connected political climate, surely know of the most common criticisms leveled against them. Indeed, more than once, Alito has answered some of the more pointed critiques of the Court\u2019s work.[11]<\/a> He and the others must know, too, how they are typecast, and feel some human temptation to go against type, even if it means compromising on matters of principle. Yet as these Essays suggest and not even his harshest critics would deny, Alito has never pulled punches to win favor or avoid opprobrium\u2014or even to abate a real and credible risk to his life.<\/p>\n\n\n\n

* * *<\/p>\n\n\n\n

The Essays in this collection portray Justice Alito as a jurist and lawyer par excellence<\/em>. While most focus on specific areas of law, there emerge a few general points worth pausing on here.<\/p>\n\n\n\n

First, Alito\u2019s legal reasoning tends to be less theoretical\u2014lighter on general and abstract observations about the proper method for interpreting legal texts\u2014than that of, say, Justices Scalia, Thomas, and Gorsuch. The latter Justices, in their opinions, often lay down general requirements of textualism (for reading statutes) or originalism (for reading the Constitution) before applying those requirements to the case at hand. Does the relative lack of explicit theorizing make Alito less textualist and originalist? Professor <\/strong>J. Joel Alicea <\/strong>and Professor John McGinnis<\/strong> argue that Alito is actually the ultimate <\/em>exemplar of both approaches.[12]<\/a> His application of both is informed by longstanding judicial traditions in our adversarial and precedential legal system, and by a sensitivity to the facts of each case and to the context of (and interpretive norms specific to) legal<\/em> texts. These features, as well as the paucity of theoretical overhead in his opinions, may reflect Alito\u2019s belief that, as he once said, \u201cjudging is not an academic pursuit; it is a practical activity.\u201d[13]<\/a><\/p>\n\n\n\n

Judging surely is that, and no practical excellence is reducible entirely to a system of abstract rules capable of mechanical application. No general and tractable formula will capture every kind of fact that might be legally relevant to a given case or every kind of argumentative move that might be sound in a given system. Just so, Justice Alito\u2019s approach to the law defies easy categorization because of the nuance of his craft, his lawyerly skepticism of abstractions, and his commitment to judging each case in light of all relevant facts. Those tendencies reflect the limits of judicial theory. More than algorithm, sound judging requires judgement.<\/p>\n\n\n\n

Of course, sound judgment is subject to some<\/em> general norms, including several discussed in this collection. To identify the general patterns and virtues of Alito\u2019s approach, former clerks and current circuit judges Steven Menashi <\/strong>and Andrew Oldham<\/strong> draw on their close observation, and now emulation, of Alito\u2019s work as a judge.[14]<\/a> Professor Adrian Vermeule <\/strong>identifies some of Alito\u2019s \u201cenduring\u201d substantive commitments, which we can \u201cglimpse . . . through a cloud of concrete facts and issues.\u201d[15]<\/a> And Judge Amul Thapar<\/strong>, Professor Keith Whittington<\/strong>, and Adam White<\/strong> applaud Alito\u2019s resolve to apply the law evenhandedly, interpret legal texts with fidelity to their original meaning, and heed real-life consequences.[16]<\/a><\/p>\n\n\n\n

As to the last factor, the Essays suggest, Alito takes a nuanced approach. While never allowing broad policy goals to override the clear import of a legal text, he does consult the proximate purposes evident from context to resolve indeterminacies in the text, and seems to require stronger arguments for a legal position the steeper the practical costs may be of adopting it.<\/p>\n\n\n\n

How else does Alito negotiate \u201cthe unruliness of the human condition,\u201d[17]<\/a> to borrow the memorable phrase of Alexander Bickel, a constitutional theorist whom Alito has cited as an early and major influence? One source of guidance, absent a neat and exhaustive set of rules, is tradition. By anyone\u2019s lights, some traditions are proper lodestars for law and adjudication. And Alito is their foremost judicial champion, as these Essays also illustrate. On the most vexed legal issues of our day\u2014concerning abortion, same-sex marriage, sexuality and \u201cidentity,\u201d racial tensions, religious liberty, and free speech\u2014our law makes some traditions legally relevant even when they are now disfavored in some quarters. And Alito gives those traditions their due weight.<\/p>\n\n\n\n

Case law itself is a kind of tradition, embodying the practices and judgments of courts spanning vast expanses of time and space, and it plays a key role whenever a text\u2019s original meaning delivers no clear resolution of the case at hand. Cases of that sort, too, showcase Alito\u2019s distinctive strengths\u2014especially his skill at processing a tangle of data points to draw a legally tenable line of best fit. That is the legal analogue of his ability, also discussed in these Essays, to pierce through a thicket of a record to the facts on which the case properly turns. And the same skill shines through Alito\u2019s questions at oral arguments, which reflect an unparalleled knack for cutting to the heart of a case, and sometimes devastating a position, in a few quick strokes.[18]<\/a><\/p>\n\n\n\n

Where have these intellectual virtues led Alito as a judge and justice?<\/p>\n\n\n\n

Part I: Interpretative Principles<\/h2>\n\n\n\n

Professor J. Joel Alicea<\/strong> opens our collection with the provocative claim that Justice Alito, who has called himself a \u201cpractical originalist,\u201d is the exemplary originalist.[19]<\/a> Alicea begins by rejecting the notion that Alito\u2019s reasoned adherence to precedent\u2014as a companion to the text, structure, and history of the Constitution itself\u2014represents a departure from the traditional craft of judging (or from the \u201cjudicial Power\u201d vested by Article III of the Constitution) as understood at the Founding. Alito\u2019s opinions reveal that he is a sophisticated practitioner of originalist methodology, whose versatility and rigor have shaped the views of fellow originalists on the Court. Where Alito has parted ways with some originalists on a particular case, it has generally been out of concern for those deep-rooted principles of our constitutional order that limit and restrain judicial power. These grounding principles commit Alito to real, albeit far from absolute, respect for stare decisis <\/em>and the limited role of judges in an adversarial system, and a lawyerly approach to analogical reasoning in cases that feature fact patterns unforeseeable at the Founding. As Alicea observes, Alito\u2019s positions in these debates fall squarely under the originalist banner.<\/p>\n\n\n\n

At this moment in particular, Alicea argues, Alito\u2019s brand of originalism is the soundest path forward and the antidote to some of originalism\u2019s lingering infirmities. The presence of an originalist majority on the Court creates an unprecedented opportunity to harmonize constitutional doctrine with the original meaning of the Constitution\u2014but also new pitfalls to navigate. This, Alicea argues, only increases the importance of Alito\u2019s balanced approach to navigating a precedential system, and his sensitivity to the ways in which the threat of \u201cliving constitutionalism\u201d still looms, but now under the guise of literalist, history-thwarting textualism. Alicea presents Alito\u2019s Bostock <\/em>dissent as an admonition against the temptation to a blinkered textualism and originalism that actually divorces<\/em> texts from the understandings of their adopters. In this and other ways, Alicea concludes, Alito is not just fairly called an originalist; he is the \u201cmature originalist\u201d needed to guide the Court through uncharted waters.<\/p>\n\n\n\n

In a similar vein, Professor John O. McGinnis<\/strong> celebrates Justice Alito\u2019s approach to interpreting statutes, which he terms \u201ccontextual textualism.\u201d[20]<\/a> Professor McGinnis uses this phrase to describe Justice Alito\u2019s willingness to take social and legal context into account when a legal text\u2019s meaning or application is ambiguous. This context-sensitive method, though it aligns with Justice Scalia\u2019s formulations of textualism,[21]<\/a> departs from the approach sometimes applied by professed textualists today.[22]<\/a> Professor McGinnis argues that Justice Alito\u2019s brand of textualism better aligns with constitutional originalism by considering what the text meant to the constitutionally relevant authority\u2014the political community at the time of its adoption into law.<\/p>\n\n\n\n

Professor McGinnis also emphasizes Justice Alito\u2019s relative deference (vis-\u00e0-vis other judicial conservatives) to administrative agencies as expert and localized policymakers, as well as his criticism of the unwieldy \u201ccategorical approach\u201d to interpreting the federal Armed Career Criminal Act. While Alito always begins, and whenever possible ends, with a law\u2019s ordinary meaning. But where that meaning runs out, he is willing to consider context and proximate purpose in a manner that sets him apart from more literal-minded textualists. His attention to context includes both the legislative bargains reflected in the particular statute at issue[23]<\/a> and the broader regulatory context and legal principles within which the statute operates. Even his occasional interpretative innovations\u2014e.g., requiring clear statement rules or interpreting statutes to avoid constitutional shoals\u2014are aimed at bringing greater harmony to the corpus juris<\/em>.<\/p>\n\n\n\n

Like Alicea, McGinnis showcases Alito\u2019s dissent in Bostock<\/em>. McGinnis identifies a pronounced concern for context in Alito\u2019s rejection of the majority\u2019s approach to Title VII, which treats the statute as a self-updating algorithm unhinged from its original public meaning. Alito, by contrast, propounds an understanding of the law grounded in the particular mischief it sought to cure.[24]<\/a> That, Professor McGinnis says, is contextual textualism at its best.<\/p>\n\n\n\n

Focusing on the Third Circuit (on which he himself sits), Judge Stephanos Bibas <\/strong>shows how during his time as a circuit judge Alito presciently anticipated and even shaped key developments in First Amendment doctrine while protection religious freedom for members of all faiths.[25]<\/a><\/p>\n\n\n\n

In a decision still deeply influential today, at the Supreme Court and below, then-Judge Alito brought clarity to the Court\u2019s doctrine authorizing scrutiny of (and exemptions from) laws that are not \u201cneutral\u201d toward religion and \u201cgenerally applicable.\u201d[26]<\/a> Under this standard, he clarified, the government must provide religious exemptions when it offers comparable secular carve-outs. Thus, when Newark allowed police officers to grow a beard while undercover or facing medical issues, Muslim officers were equally entitled to forgo shaving for religious reasons. Similarly, because Pennsylvania exempted zoos and circuses from a wildlife owner fee, it had to waive that fee for a tribal shaman who used black bears in religious ceremonies. Some thirty years later, this equality principle proved dispositive in a number of free exercise cases involving pandemic restrictions, including in a Supreme Court decision holding invalid New York\u2019s targeted restrictions on houses of worship in Roman Catholic Diocese of Brooklyn v. Cuomo<\/em>.[27]<\/a><\/p>\n\n\n\n

With respect to the Establishment Clause, Judge Alito applied the Supreme Court\u2019s unoriginalist test in Lemon v. Kurtzman[28]<\/strong><\/a> <\/em>in a way meant to ensure that (wherever possible) displays of faith remained as welcome in America\u2019s public squares as they were at the Founding. In passing on the lawfulness of religious displays, Judge Alito focused more on their historical pedigree as a class than on detailed comparisons of each new display to the assortment featured in jumbled caselaw. Decades later, Alito\u2019s historical approach has decisively prevailed, most notably in his majority opinion in American Legion v. American Humanist Association[29]<\/strong><\/a><\/em> and in the final repudiation of the Lemon <\/em>test in Kennedy v. Bremerton School District<\/em>.[30]<\/a> So too, Judge Alito\u2019s pruning of restrictions singling out religious activities in public schools presaged the Supreme Court\u2019s rejection of laws discriminating against religious schools participation in the provision of public benefits, in such recent cases as Espinoza v. Montana Department of Revenue[31]<\/strong><\/a> <\/em>and Carson v. Makin<\/em>.[32]<\/a><\/p>\n\n\n\n

Finally, in the free speech context, Judge Alito was vigilant against even subtle discrimination against speech based on its religious character or unpopularity, especially in schools. Whether the speech was a kindergartner\u2019s Thanksgiving poster honoring Jesus or student comments expressing disapproval of homosexuality, Judge Alito maintained that schools could not ban speech just because others might find it offensive. Cases pitting free speech rights against antidiscrimination law have continued to divide the lower courts, and while the Supreme Court has not yet decisively intervened, we can hope that Judge Alito\u2019s insights will guide the Court as it confronts these issues this Term in 303 Creative LLC v. Elenis<\/em>.[33]<\/a><\/p>\n\n\n\n

Judge Steven J. Menashi <\/strong>identifies Justice Alito as the quintessentially \u201cprudent judge.\u201d[34]<\/a> On Menashi\u2019s account, the essence of judicial prudence is to resist abstraction, attend to the facts of each case, and defer to practice and precedent unless there are compelling reasons to change course. As Judge Menashi shows, Justice Alito has each of these qualities in spades.<\/p>\n\n\n\n

I have already mentioned Alito\u2019s allergy to abstractions and focus on historical practice and the settled judgments of past generations. Because Alito recognizes that history is nuanced and complex, he is skeptical of objections to established practices that invite courts to second-guess the constitutional judgments of past generations. For example, with respect to longstanding monuments and legislative practices of a religious character, Alito presumes their validity unless there is good reason to think past constitutional actors underestimated their defects.<\/p>\n\n\n\n

The convergence of these principles can be seen in Justice Alito\u2019s nuanced attitude toward stare decisis<\/em>. He recognizes the need to respect precedent but also appreciates that \u201coccasionally the Court issues an important decision that is egregiously wrong,\u201d and in such cases \u201cstare decisis<\/em> is not a straitjacket.\u201d[35]<\/a> For example, Justice Alito has forcefully argued that Employment Division v. Smith <\/em>should be overruled because of what he regards as its cramped misreading of the Free Exercise Clause and of the Court\u2019s prior precedent interpreting that provision.<\/p>\n\n\n\n

Moreover, in the lion\u2019s share of cases in which the Court adheres to its prior rulings, Alito treats precedent with lawyerly adeptness. He has particular skill for identifying the specific legal question decided in previous cases and the kind of factual contrast that can fairly support a different approach in a new case. In sum, his understanding of judicial humility forbids cavalierly casting precedent aside but does not require setting it in stone or pulling it out of context.<\/p>\n\n\n\n

Part II: Criminal Law and the Separation of Powers<\/h2>\n\n\n\n

In a thought-provoking historical Essay, Professor Jack Goldsmith <\/strong>reflects on how Justice Alito has grappled with the fundamental change in judicial power wrought by the Supreme Court\u2019s New Deal-era rejection of federal courts\u2019 authority to formulate \u201cgeneral common law.\u201d[36]<\/a> In its watershed 1938 decision Erie Railroad Company v. Tompkins<\/em>,[37]<\/a> the Supreme Court overruled a century of cases endorsing the federal courts\u2019 ability to develop a body of common law independent of both federal statutory or constitutional law and underlying state law.<\/p>\n\n\n\n

But what to do with the legal developments preceding Erie <\/em>that relied on the general common law-making authority of federal courts? One potential substitute could be found in the genuinely federal<\/em> common law that federal courts have fashioned since Erie <\/em>to implement the Constitution or federal statutes. But gaps remain, confounding the operation of remedies that depend on common law causes of action. Justice Alito\u2019s view, which has informed the Supreme Court\u2019s recent decisions, is that the Constitution\u2019s separation of powers requires allowing Congress rather than courts to fashion new causes of action where needed, as in the Bivens <\/em>context.<\/p>\n\n\n\n

Yet Goldsmith argues that Erie<\/em> was at odds with the Founding-era view of federal judicial power and, thus, with originalism. In particular, he argues, the Court has flouted the original understanding of federal judicial power in doctrines, long favored by judicial conservatives, that narrow parties\u2019 standing to sue in federal court as well as the range of available remedies. If originalists persuade the Court to revisit those doctrines, it may find guidance in Justice Alito\u2019s sophisticated approach to navigating tensions between originalism and settled precedent.<\/p>\n\n\n\n

In her Essay on criminal law, Professor Kate Stith <\/strong>describes Alito as a \u201cnatural judge\u201d who faithfully pursues the law\u2019s meaning as sensibly read in its practical context.[38]<\/a> By way of contrast, Professor Stith shows what happens when the Supreme Court loses sight of the law\u2019s ordinary meaning in flights of academic fancy. In 1984, Congress decided to ramp up the sentencing provisions for serious, repeat offenders with the passage of the Armed Career Criminal Act (ACCA). That law introduced mandatory minimum sentences for offenders previously convicted on three or more occasions of a violent felony or serious drug offense. But in short order, the Supreme Court\u2019s doctrines dismantled the law. By the time Alito had reached the Court, the caselaw\u2019s \u201ccategorical approach\u201d required courts to ignore the substance of an offender\u2019s past crimes and instead engage in an academic exercise involving comparisons between \u201cgeneric\u201d federal crimes and the least harmful conduct that could<\/em> be prosecuted under the statute. In case of a gap between the two, courts could not treat any <\/em>offense under the state law in question as a \u201cviolent\u201d one potentially triggering heightened sentences under ACCA. Thus, defendants convicted of three or more counts of robbery or other serious crimes could successfully argue that their past crimes\u2014however gruesome in fact\u2014were not categorically <\/em>violent because someone else could have committed the same statutory offense in a less violent fashion. As Alito has lamented, this unduly formalistic and counterfactual approach to statutory interpretation has upended the scheme to which Congress clearly gave effect in ACCA.<\/p>\n\n\n\n

Alito has also objected to the Court\u2019s failure to clearly define the mental state required for commission of particular offenses when construing ambiguous federal statutes. In one case, the Court\u2019s silence on that question in the context of a law concerning threatening communications left attorneys, judges, and criminal defendants to guess whether reckless comments that were objectively threatening were punishable or whether the statute applied only when the speaker knew<\/em> his words would be heard as a threat. Alito has been similarly critical of the Court\u2019s strained reading of federal gun laws prohibiting certain persons from possessing firearms as requiring that the defendant knew that he belonged to the specific class of persons forbidden from gun possession. In each case, the Court invited a flood of retroactive litigation on the basis of questionable readings of the statutory text and bowdlerized presentations of the factual record.<\/p>\n\n\n\n

Above all, Professor Stith shows that Justice Alito abjures abstractions in defining the scope of criminal laws. Failure to heed his admonitions has caused untold practical difficulties for lower courts, defendants, and crime victims seeking finality through the criminal justice system\u2014difficulties that lawmakers could not plausibly have chosen to create. Ultimately, Alito\u2019s fidelity to the law and its objective goals, not any theory or ideology, makes him a natural judge.<\/p>\n\n\n\n

In the realm of criminal procedure, Judge Andrew S. Oldham <\/strong>shows that while Justice Alito prefers clear rules to open-ended standards, he is, again, not blind to the law\u2019s practical purposes.[39]<\/a> Beginning with the Fifth Amendment, Judge Oldham illustrates how Justice Alito has understood Miranda<\/em>\u2014itself a prophylactic meant to institute a clear rule circumscribing the amorphous voluntariness standard\u2014to require administrability, above all, regarding whether a suspect was objectively in police custody or had affirmatively invoked his right against self-incrimination.<\/p>\n\n\n\n

Judge Oldham also demonstrates how Justice Alito pairs originalist reasoning with a deep understanding of the actual operation of the criminal justice system. In cases interpreting the Confrontation Clause, for example, Justice Alito has opposed efforts to require laboratory technicians to appear personally in court to testify rather than having an expert summarize their findings. As a formal matter, the confrontation right never extended to the generation of such neutral scientific results. And as a practical matter, such a requirement would ultimately disserve defendants and the justice system by discouraging the use of reliable evidence.<\/p>\n\n\n\n

Judge Oldham also emphasizes Justice Alito\u2019s judicial modesty and resulting respect for precedent. Most notably, Alito has resisted novel constitutional mandates in the area of criminal procedure that would upend settled convictions and introduce further confusion into fast-evolving, dangerous police encounters with suspects. He has similarly opposed stretching precedent to fit the case at hand in a way that leaves lower courts puzzling through a mess of self-contradictory doctrines. Alito\u2019s reluctance to adopt new formal distinctions has been especially pronounced in the Fourth Amendment context, where he has preferred the imperfect but well-established \u201creasonable expectation of privacy\u201d test for whether a search has occurred.<\/p>\n\n\n\n

Thus, while preferring rules to standards, Justice Alito has followed a judicial analogue of the Hippocratic Oath: \u201cfirst, do no harm.\u201d His approach has disciplined the Court\u2019s excesses while steadily contributing to the coherence of individual rights doctrine in criminal adjudications.<\/p>\n\n\n\n

In the separation of powers context, Judge Amul Thapar <\/strong>demonstrates how Justice Alito openly acknowledges the limitations of theory and yet remains committed to the formulation of clear legal rules.[40]<\/a> This preference for decisional rules over broad, discretion-conferring standards serves to cabin the excesses of judicial power, keep the judiciary impartial and apolitical, and ensure that adjudication is a matter of principle rather than popularity.<\/p>\n\n\n\n

A preference for clear rules dovetails with Alito\u2019s reining in of what he regards as suspect judicial practices, chief among them the practice of creating new judicially recognized causes of action in the mold of Bivens<\/em>, rather than allowing Congress to create statutory remedies based on its own balancing of the competing policy interests. Alito\u2019s skepticism about extending Bivens <\/em>stems from a reluctance to intrude on political branches\u2019 role where courts have no special expertise.<\/p>\n\n\n\n

Justice Alito has also revived lapsed doctrines to vindicate principles of federalism. Thus, Alito revitalized the anti-commandeering doctrine by rejecting an academically favored but ultimately facile distinction between affirmative mandates conscripting state officials to administer federal programs and prohibitory language that would ultimately achieve the same results. Alito restored analysis of the limits of congressional authority to the constitutional source: Article I\u2019s enumeration of specific powers for the regulation of individual conduct. That approach also rightly allows the public to hold Congress accountable for its regulatory decisions and preventing Congress from passing along the costs of its policies to state governments.<\/p>\n\n\n\n

A similar logic compelled Alito\u2019s conclusion in a dissent that the Supreme Court could not review the decisions of courts martial because those courts exercise fundamentally executive rather than judicial power. Alito takes a similarly structuralist view of Article II, insisting that the President must have unfettered authority to remove the heads of putatively independent agencies.<\/p>\n\n\n\n

The constant in Justice Alito\u2019s writing on the separation of powers is that the branches of our government must be held to account when they overstep their authority. The best way to do that is not to ask courts to weigh imponderables or balance policy interests, but to apply clear rules in light of constitutional text, history, and structure, as well as past precedents and the practices of our government over time. In marrying the best of rules and standards, Justice Alito upholds the system of checks and balances that safeguards individual liberty.<\/p>\n\n\n\n

Part III: Speech, Religion, Abortion, and the Common Good<\/h2>\n\n\n\n

Gabrielle Girgis <\/strong>surveys Justice Alito\u2019s Free Exercise and Establishment Clause cases, where he has been an undisputed leader in shaping the Court\u2019s jurisprudence.[41]<\/a> Girgis begins with a Third Circuit case in which then-Judge Alito clarified recent Supreme Court precedents in ways that still exert a strong gravitational pull on the Court decades later. She then traces Justice Alito\u2019s influence on a number of topics in law and religion, including the meaning of religious neutrality, the prongs of strict scrutiny analysis in free exercise cases, the proper test for assessing religious displays under the Establishment Clause, and the right of religious institutions to govern themselves without state interference. While much of Alito\u2019s legacy in this area is well-known, Girgis draws particular attention to unsung contributions, including his nuanced and historically grounded approach to determining whether a law serves a compelling interest\u2014an approach that could guide the Court\u2019s application of heightened scrutiny when it comes to other constitutional liberties beyond religion. Animating all of these religion opinions, Girgis argues, is a common jurisprudential approach. Consistently, Justice Alito seeks a balance between continuity and renewal. He applies existing religion doctrines while clarifying and refining them. When they drift from the Constitution\u2019s text, history, and tradition, he urges revising them. As she shows, he has repeatedly anticipated tomorrow\u2019s questions far in advance, and has charted a path forward, in ways that preserve and even deepen the Court’s roots to the past.<\/p>\n\n\n\n

Picking up on Justice Alito\u2019s attention to history, Adam J. White <\/strong>presents the Justice as a Burkean, yet at the same time quintessentially American, conservative.[42]<\/a> Setting Alito\u2019s personal story against the backdrop of legal history, White shows how Alito\u2019s traditionalist instincts, incrementalism, skepticism toward concentrated power, and aversion to abstraction grew out of the values of his small-town upbringing and into a conservative judicial philosophy that has remained constant as political currents have ebbed and flowed.<\/p>\n\n\n\n

From William F. Buckley onward, American conservativism has struggled to combine republican institutionalism with moral populism. By the late 1960s, when Alito\u2019s hometown of Trenton was gutted by riots and crime, law and order had become an organizing principle. Meanwhile, as the liberal administrative state expanded and Nixon won the White House, conservatives shifted toward a robust view of presidential power as a check on the bureaucratic state. Then with the constitutional bicentennial in 1976, the movement re-centered the Constitution and the founding generation as the cornerstones of American legal doctrines.<\/p>\n\n\n\n

Alito was always a step ahead of the movement. It was Alexander Bickel\u2019s 1970 book The Supreme Court and the Idea of Progress[43]<\/strong><\/a><\/em> that inspired the young Alito to attend Yale Law School. Bickel famously identified the danger of high-minded judicial attempts to revitalize democracy by constitutional edict. This would become an organizing principle of the Federalist Society, which arrived on the scene in 1982, after Alito had joined the Solicitor General\u2019s Office. As originalism and textualism developed in the academy and took hold in the courts, Alito was quietly working within the legal machinery of the Reagan Administration. Even as Alito\u2019s star rose with his appointment as U.S. Attorney and circuit judge, it was not clear to the public what he thought of the originalist theories at the center of public debate\u2014including in the contentious 1987 confirmation hearings over Robert Bork\u2019s nomination. Alito\u2019s ascent to the bench revealed his originalist sympathies, but also his practical bent, restraint, humility in deference to established wisdom, and mastery of the judicial craft. In that sense, Alito represents both sides of the conservative coin: a prudent Burkean institutionalist deeply rooted in the moral fabric of the American people and their way of life.<\/p>\n\n\n\n

Professor Adrian Vermeule <\/strong>situates Justice Alito\u2019s jurisprudence within a fundamental tension between, as he puts it, reason and fiat.[44]<\/a> Professor Vermeule draws on the insights of Harvard legal theorist Lon Fuller, who in important work in the 1950s and 60s distinguished between discoverable principles of natural law and social order (ordinances of reason, as one might say), and the distillation of such principles into concrete rules (positive law) through a form of fiat\u2014sheer choice by the competent officials. As Vermeule explicates Fuller\u2019s view, the judicial task is not to apply positive law mechanistically, but to interpret<\/em> it in light of officials\u2019 reasoned choices and proximate purposes to serve certain human goods. This deference to officials\u2019 reasonable choices is a distinctively judicial way to contribute to the common good\u2014the all-round flourishing of the community. It reflects a vision of positive law at work in various ways at the Founding and in work by great figures in Western legal thought, including early English, medieval Scholastic, and ancient Greek and Roman jurists.<\/p>\n\n\n\n

Vermeule identifies several ways in which Alito has adhered to this vision of law. In administrative procedure, Alito has won over a majority of the Court to his view that agency actions must be consistent with certain basic principles of intrinsic procedural morality, including a strong disfavoring of retrospective liability and the consideration of reliance interests, even when those principles cannot be traced to any particular statute or constitutional provision. And in constitutional law, Alito has also hewn to a slightly narrower, more original-purpose-oriented and less abstract conception of free speech than his more libertarian colleagues of either the right or left. In his view, protected speech as originally understood must have some nexus to the flourishing of the community. So narrow categories of purely abusive or malicious speech would not qualify for the First Amendment\u2019s protections. As Professor Vermeule contends, the use of reasoned judgment is not in tension with, but rather is faithful to, the speech right\u2019s original meaning.<\/p>\n\n\n\n

Justice Alito\u2019s free speech jurisprudence receives more extended treatment from Professor Keith Whittington<\/strong>.[45]<\/a> Whittington presents Alito as the legacy-bearer of liberal lions such as Louis Brandeis, Hugo Black, William Douglas, and William Brennan, who championed \u201cthe freedom to express the thought we hate.\u201d Yet Alito identifies a limit to this principle when unconscionably vicious speech targets private persons with no appreciable public benefit.<\/p>\n\n\n\n

On the one hand, Whittington shows that Alito is rightly concerned about the serious threat to free speech presented by the coddling tendencies of \u201cwoke\u201d political correctness increasingly at work in our law and society. The notion that free speech protections are for some views only\u2014excluding an ever-expanding set of traditional beliefs deemed hateful, bigoted, or psychically harmful\u2014makes a mockery of neutrality under the First Amendment.<\/p>\n\n\n\n

But here as elsewhere, Alito is not doctrinaire. When the expression at issue is plainly destructive (like films of the crushing of small animals for sadistic gratification), tortiously vicious (like brutal rhetoric attacks directed at family members mourning at a loved one\u2019s funeral), or demonstrably fraudulent (like the use of a counterfeited medal to posture as a decorated servicemember), Alito draws a line. It is a fine line, for draconian speech codes, too, purport to shield innocent victims from harm\u2014the \u201charm\u201d of offensive expression\u2014and prevent misinformation. But Whittington shows how Alito attempts to frame narrow rules to implement historic exceptions to free speech protection without licensing censorship.<\/p>\n\n\n\n

Alito\u2019s fine-grained analysis is also on display in his approach to government speech. Because the government is generally free to express its own views, when it accepts a private monument for display in a public setting and thereby specifically authorizes a message, that does not bind it to adopt a take-all-comers policy towards other would-be donors. At the same time, Alito has argued, the government cannot restrict private speech it disfavors. Drawing this distinction requires fact-specific, nuanced judgments\u2014but that is the path of the law and the mark of a careful judge.<\/p>\n\n\n\n

Justice Alito\u2019s recognition of free speech limits has also served to protect other constitutionally significant interests, such as parents\u2019 rights to control the media or classroom lessons to which their children are exposed. Yet Alito has been equally vigilant to stave off the doctrinal creep that would permit viewpoint-based restrictions that would suppress student speech or compel individuals to speak, as through union fees. Free speech may not be absolute, but neither is it a makeweight. When its extremes are properly disciplined, free speech nurtures the moral and political discourse at the heart of constitutional self-government.<\/p>\n\n\n\n

Finally, Professor Kevin Walsh<\/strong> analyzes an opinion released after the symposium but before its publication: Justice Alito\u2019s opinion for the Court in the most important Supreme Court case in nearly 70 years.[46]<\/a> I refer, of course, to Dobbs<\/em>, which overturned Roe<\/em> and Casey<\/em>, and held that states may prohibit elective abortions throughout pregnancy. Dobbs<\/em> marks, in my view, the Court\u2019s finest moment, correcting one of the two or three worst crimes against the rule of law and justice ever perpetrated by the Court itself. Alito\u2019s opinion will surely be remembered as the most important writing by anyone on the Court during his tenure. And it is not only the crowning achievement of two generations\u2019 efforts at constitutional reform, but a fitting capstone to this volume, recapitulating all the strengths and trademarks of his opinions in other areas. Professor Walsh manages to say something new about it. With philosophical insight and learning, his Essay argues that Alito\u2019s opinion reflects the triumph of the virtue of prudence\u2014an essential one for any official, and perhaps the defining virtue of a Justice attuned to the subtleties of factual and legal context, of doctrine and tradition, and of the demands of legal justice in our system.<\/p>\n\n\n\n

*<\/sup><\/a> McCormick Professor of Jurisprudence and Director, James Madison Program, Princeton University.<\/p>\n\n\n\n

[1]<\/a> Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (discussing and upholding Roe v. Wade, 410 U.S. 113 (1973)).<\/p>\n\n\n\n

[2]<\/sup><\/a> David Stout, Alito is Sworn In as Justice After 58-42 Vote to Confirm Him<\/em>, N.Y. Times (Jan. 31, 2006), https:\/\/www.nytimes.com\/2006\/01\/31\/politics\/politicsspecial1\/alito-is-sworn-in-as-justice-after-5842-vote-to.html [https:\/\/perma.cc\/QB4P-R5H6].<\/p>\n\n\n\n

[3]<\/a> 142 S. Ct. 2228 (2022).<\/p>\n\n\n\n

[4]<\/sup><\/a> These Essays were first delivered as addresses at a March 2022 symposium hosted by the American Enterprise Institute and the James Madison Program in American Ideals and Institutions at Princeton University. After the Dobbs<\/em> decision was released, another Essay was commissioned to analyze Justice Alito\u2019s opinion for the Court.<\/p>\n\n\n\n

[5]<\/a> Adam J. White, Samuel Alito\u2019s Conservatism\u2014Burkean and American<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 22 (2023).<\/p>\n\n\n\n

[6]<\/a> Kate Stith, Justice Alito on Criminal Law<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 18, *1 (2023).<\/p>\n\n\n\n

[7]<\/sup><\/a> 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, 109th Cong. 663 (2006) (statement of Leonard I. Garth, Senior Judge, U.S. Court of Appeals for the Third Circuit).<\/p>\n\n\n\n

[8]<\/sup><\/a> Neil A. Lewis & Scott Shane, Alito is Seen as a Methodical Jurist with a Clear Record<\/em>, N.Y. Times (Nov. 1, 2005), https:\/\/www.nytimes.com\/2005\/11\/01\/politics\/politicsspecial1\/alito-is-seen-as-a-methodicaljurist-with-a-clear.html [https:\/\/perma.cc\/XV6R-3QTC].<\/p>\n\n\n\n

[9]<\/a> Stephanos Bibas, Judge Alito\u2019s First Amendment Vigilance on the Third Circuit<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 15, *1 (2023).<\/p>\n\n\n\n

[10]<\/a> See<\/em> Yuval Levin, A Time to Build: From Family and Community to Congress and the Campus, How Recommitting to Our Institutions Can Revive the American Dream (2020).<\/p>\n\n\n\n

[11]<\/a> See, e.g.<\/em>, Adam Liptak, Alito Responds to Critics of the Supreme Court\u2019s \u2018Shadow Docket\u2019<\/em>, N.Y. Times (Oct. 4, 2021), https:\/\/www.nytimes.com\/2021\/09\/30\/us\/politics\/alito-shadow-docket-scotus.html [https:\/\/perma.cc\/LN32-JH6F].<\/p>\n\n\n\n

[12]<\/a> J. Joel Alicea, The Originalist Jurisprudence of Justice Samuel Alito<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 13 (2023); John O. McGinnis, The Contextual Textualism of Justice Alito<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 14 (2023).<\/p>\n\n\n\n

[13]<\/a> Samuel A. Alito, Jr., Assoc. J., Sup. Ct. of the U.S., The Wriston Lecture at the Manhattan Institute for Policy Research: Let Judges Be Judges 4 (Oct. 13, 2010) (transcript available at https:\/\/media4.manhattan-institute.org\/pdf\/wriston2010.pdf [https:\/\/perma.cc\/C25X-2V4P]).<\/p>\n\n\n\n

[14]<\/a> Steven Menashi, The Prudent Judge<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 16 (2023); Andrew S. Oldham, Justice Alito on Criminal Procedure<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 19 (2023).<\/p>\n\n\n\n

[15]<\/a> Adrian Vermeule, Reason and Fiat in the Jurisprudence of Justice Alito<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 23, *1 (2023).<\/p>\n\n\n\n

[16]<\/a> Amul Thapar, Justice Alito: A Justice of Foxes and Hedgehogs<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 20 (2023); Keith E. Whittington, Justice Alito\u2019s Free Speech Jurisprudence<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 24 (2023); White, supra<\/em> note 5.<\/p>\n\n\n\n

[17]<\/a> Alexander Bickel, The Morality of Consent 11 (1975).<\/p>\n\n\n\n

[18]<\/a> See, e.g.<\/em>, Transcript of Oral Argument at 38\u201340, Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) (No. 16-1435).<\/p>\n\n\n\n

[19]<\/a> Alicea, supra<\/em> note 12, at *2 (citing Matthew Walther, Sam Alito: A Civil Man<\/em>, Am. Spectator (Apr. 21, 2014), https:\/\/spectator.org\/sam-alito-a-civil-man\/ [https:\/\/perma.cc\/EX62-4QH8]).<\/p>\n\n\n\n

[20]<\/a> McGinnis, supra<\/em> note 12, at *1.<\/p>\n\n\n\n

[21]<\/a> In Justice Scalia\u2019s view, \u201cthe textualist routinely takes purpose into account, but in its concrete manifestations as deduced from close reading of the text. . . . The evident purpose of what a text seeks to achieve is an essential element of context that gives meaning to words.\u201d Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 20 (2012).<\/p>\n\n\n\n

[22]<\/a> Compare<\/em> Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1755 (2020) (Alito, J., concurring) (criticizing lack of sensitivity to temporal context when interpreting statutory terms), with<\/em> id.<\/em> at 1749\u201351 (majority opinion) (rejecting any look at the linguistic expectations of the time of enactment).<\/p>\n\n\n\n

[23]<\/a> Cf. <\/em>Frank H. Easterbrook, The Role of Original Intent in Statutory Construction<\/em>, 11 Harv. J.L. & Pub. Pol\u2019y 59, 68\u201369 (1988); John F. Manning, What Divides Textualists From Purposivists?<\/em>, 106 Colum. L. Rev. 70, 96\u2013110 (2006).<\/p>\n\n\n\n

[24]<\/a> Cf.<\/em> Samuel L. Bray, The Mischief Rule<\/em>, 109 Geo. L.J. 967 (2021).<\/p>\n\n\n\n

[25]<\/a> Bibas, supra<\/em> note 9, at *3 (\u201c[Justice Alito\u2019s] free-exercise commitment protects people of all faiths, just as the Constitution demands.\u201d).<\/p>\n\n\n\n

[26]<\/a> See generally <\/em>Emp. Div. v. Smith, 494 U.S. 872 (1990).<\/p>\n\n\n\n

[27]<\/a> 141 S. Ct. 63, 66\u201367 (2020) (per curiam).<\/p>\n\n\n\n

[28]<\/a> 403 U.S. 602 (1971).<\/p>\n\n\n\n

[29]<\/a> 139 S. Ct. 2067, 2089\u201390 (2019).<\/p>\n\n\n\n

[30]<\/a> 142 S. Ct. 2407, 2427\u201328 (2022).<\/p>\n\n\n\n

[31]<\/a> 140 S. Ct. 2246 (2020).<\/p>\n\n\n\n

[32]<\/a> 142 S. Ct. 1987 (2022).<\/p>\n\n\n\n

[33]<\/a> 303 Creative LLC v. Elenis, No. 21-476 (argued Dec. 5, 2022).<\/p>\n\n\n\n

[34]<\/a> Menashi, supra<\/em> note 14.<\/p>\n\n\n\n

[35]<\/a> Dobbs v. Jackson Women\u2019s Health Org., 142 S. Ct. 2228 (2022).<\/p>\n\n\n\n

[36]<\/a> Jack Goldsmith, Erie and Contemporary Federal Courts Doctrine<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 17 (2023).<\/p>\n\n\n\n

[37]<\/a> 304 U.S. 64 (1938).<\/p>\n\n\n\n

[38]<\/a> Stith, supra<\/em> note 6, at *1.<\/p>\n\n\n\n

[39]<\/a> Oldham, supra<\/em> note 14.<\/p>\n\n\n\n

[40]<\/a> Thapar, supra<\/em> note 16.<\/p>\n\n\n\n

[41]<\/a> Gabrielle Girgis, An Architect of Religious Liberty Doctrines for the Roberts Court<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 21 (2023).<\/p>\n\n\n\n

[42]<\/a> White, supra<\/em> note 5.<\/p>\n\n\n\n

[43]<\/a> Alexander Bickel, The Supreme Court and the Idea of Progress (1970).<\/p>\n\n\n\n

[44]<\/a> Vermeule, supra<\/em> note 15.<\/p>\n\n\n\n

[45]<\/a> Whittington, supra<\/em> note 16.<\/p>\n\n\n\n

[46]<\/a> Kevin C. Walsh, The Elevation of Reality over Restraint in <\/em>Dobbs v. Jackson Women\u2019s Health Organization, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 25 (2023).<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Introduction: The Jurisprudence of Justice Samuel Alito Robert P. George* Introduction Samuel A. Alito, Jr. was sworn into office as an Associate Justice of the Supreme Court of the United States on January 31, 2006. As we can say with the benefit of hindsight, that proved to be one of the most pivotal moments in the Supreme Court\u2019s modern history, with deep and lasting effects on our constitutional law and culture, as well as on 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