Justice Samuel Alito recently wrote a striking essay for the Wall Street Journal, one that, while proclaiming fidelity to originalism, departs in crucial ways from what might be called Federalist Society orthodoxy.
The essay’s central theme is that originalism does not eliminate the need for judgment on the part of the judge. In our view this must be right and it is important that Justice Alito has said it. For that reason, among others, Justice Alito calls himself a “practical originalist” or a “working judicial originalist.”
Along the way, however, Justice Alito also identifies a number of ways the originalist judge may go wrong, and it is here that his views become distinctly unconventional — for an originalist. One such passage, identifying the error of “insecure originalism,” struck us as especially forceful and also especially suspect of heresy from the orthodox perspective. The passage runs as follows:
“Insecure originalism. Even though originalism has a strong intellectual foundation and has won important judicial respect, insecure originalists remain in what Prof. Adrian Vermeule has called a ‘defensive crouch.’1 Wary of being charged with ‘results oriented’ decision-making, they are allergic to any evaluation of results. That is a mistake. No neutral theory will produce a socially desirable result in every case. But unless originalism is widely viewed as generally producing good results, it is hard to see how it can survive as more than an academic curiosity.
Insecure originalists may worry that they are subconsciously engaging in ‘judicial activism’ in the service of their own policy preferences. As a result, they may welcome occasions when their originalist analysis leads to results they dislike. They experience a brief catharsis, a release of their anxiety about succumbing to temptation.
Twenty-first-century originalists should shed this insecure mindset. When originalist analysis seems at first to lead to a result that makes no sense, judges should check their work. An originalist judge shouldn’t cavalierly or happily embrace results that defy common sense and should be on guard against subconsciously setting a higher bar for legal arguments that yield outcomes he finds desirable as a policy matter. We must follow the law wherever it leads. That doesn’t require a thumb on the scale against appealing outcomes.”
In Justice Alito’s typically quiet, understated style, he has here proposed a version of originalism, accompanied by an attitude on the part of the originalist judge, that is far more disruptive of originalist orthodoxy than might first appear. It is not as though the “insecure mindset” that Justice Alito decries is some incidental or accidental feature of originalist theory or originalist rhetoric. Decrying “result-orientation” and praising the judge who stands on “principle,” even or especially if principle contradicts the judge’s own “preferences,” has long been the essential self-conception of, and rhetorical advertisement for, originalist orthodoxy. The whole framing of originalism has been that it is a neutral method, indeed the only possible neutral method that respects law as law; and the true test of that method, on the orthodox view, is whether it contradicts what the judge otherwise thinks would be good for the law, a consideration that the orthodox originalist can only see as a “subjective preference.” (Needless to say, we believe that the putative choice between results-blind originalism and subjective preference is a false alternative).
Justice Alito now frames that essential self-conception and rhetorical advertisement of orthodox originalism as a failing, a psychological insecurity that the originalist judge should if possible overcome. In its place, he proposes to leaven originalism with “common sense” — a faculty that sounds suspiciously close to the natural and practical reason which, on the classical legal perspective, is common in the sense that it is written in the hearts of all men and women, and that is itself internal to law and legal practice. If this version of originalism retains the formal label of the orthodox method, the willingness to assess results for their “goodness,” their public benefit, means that the substance is not that of Judge Pryor or of the modal originalist academic. “Common sense” originalism that looks to whether results are generally “good” is not far at all from the sort of “common good-ism” that Pryor abhors. We see here the tendency or capacity of “originalism” to fracture into very different versions, collected under the same nominal label and sharing a (merely?) sociological affinity. This has long been a problem for originalist theory;2 there are now probably dozens of versions, and Justice Alito’s is, quietly, among the most radical yet propounded.
Justice Alito’s version of originalism, attentive to consequences and enriched by natural reason (or, if one prefers, common sense), also strikes us a highly plausible candidate for a long-run winner. That is to say, it seems highly plausible that it is this version of originalism — or perhaps one ought to say “originalism” — on which conservative legal theory will settle in long-run equilibrium. It allows a certain formal continuity with past orthodoxy, to which a number of judges and academics are professionally and emotionally committed, while also accommodating certain awkward facts: (1) that natural reason and natural law were long seen by American judges as sources of law in their own right and of their own force; (2) that a concern for consequences was, for much of our legal history, an explicit and self-conscious component of judicial interpretation of statutes and the Constitution; and (3) that if the President’s recent statements are any guide, any Justice or judge appointed during the remainder of the current administration or in a future Vance administration will not be able to simply stand upon the pieties about self-denying “principle” advanced by judicial nominees during the first Trump administration.
In short, Justice Alito’s version of originalism is a promising candidate for the “Augustan settlement” of constitutional method that we have suggested is a likely future for American constitutionalism, at least among legal conservatives — a settlement in which the forms of originalism are preserved for piety’s sake, while the substance is classical. Whether called “practical originalism,” “working judicial originalism,” or “common sense originalism,” Justice Alito’s approach is a rose by any other name, and, to us anyway, it smells as sweet.
[Editors’ note: The phrase “defensive crouch,” which Justice Alito may or may not mean to attribute to Vermeule, is one for which Mark Tushnet deserves the, er, original credit. It is true however that Tushnet applied the phrase to what he called “liberal constitutionalism,” whereas Vermeule has applied it to originalism in various fora].
Is originalism in any of its varieties explicitly or implicitly in the Constitution? If not, as seems likely, what is the source of its validity? Alito doesn’t answer these obvious questions, leading to the conclusion that his results are in fact personal and political and his so-called originalism is just rationalization.