Never let it be said that Samuel Alito rests on his laurels. Apparently a far-right majority on the Supreme Court is not enough for Alito, and the Supreme Court justice spent time last week ahead of the Court’s new Term trying to goad judges into more extreme decisions.
Appearing at an event at ASS Law — that is, George Mason University’s Antonin Scalia Law School — Alito described himself as a “working judicial originalist” who “strives to achieve originalist aims while working within the framework of our legal system.” But he had some harsh words for other jurists that use the originalist moniker.
Alito specifically called out what he termed the “wrong turns” of originalism — which seem designed to encourage more extreme right results. As reported by Law.com:
The first, he said, was displaying “insecure” originalism, which he described as people who remain on the “defensive” and are “haunted” by accusations of judicial activism. These originalists, he said, are “allergic” to any discussion of the value of the results produced by originalist methodologies.
“That is a mistake,” Alito said, asserting that it is important for originalists to focus on what he viewed as the positive outcomes of interpreting the Constitution by looking to the ordinary public meaning at the time of its ratification.
“More than any other theory, it furthers the common good,” Alito said.
Ah, remember when activist judge was the ultimate conservative insult for liberal jurists? To assuage those who might be squicked out by the dig being rightly turned back on originalists, Alito suddenly has a different angle — insult them as “insecure.” Real mature.
Alito took shots at a variety of originalism flavors, such as partial originalism, academic originalism, and black-and-white originalism — all to garner acolytes to his own personal judicial philosophy.
But what Alito said during his takedown of “Icarian originalism” should be deeply concerning for those that care about marriage equality.
One such example [of Icarian originalism], he said, were a group of professedly originalist scholars who argued in Obergefell that same-sex marriage was protected by an originalist interpretation of the 14th Amendment.
Alito said it was “impossible” to argue that the general public, following the ratification of the 14th Amendment in 1868, “required the states to recognize such unions.”
Alito concludes, “So from an originalist perspective, Obergefell should have been an easy decision.”
So, yeah, it really *is* time to worry about marriage equality. Though Alito added, “Obergefell is a precedent of the court that is entitled to respect afforded by the doctrine of stare decisis.” Continuing, “And as I said in my opinion for the court in Dobbs, more than once, nothing in Dobbs was meant to disturb that decision.” That’s… not actually comforting.
Roe was precedent, Chevron deference was precedent, and Humphrey’s Executor was precedent until they weren’t. Nothing in Alito’s mealy-mouthed comments changes the fact that the conservative movement is gunning for Obergefell. Especially not when you consider Alito’s unhinged dissent in Obergefell, and that he still can’t let go. In 2020, in a denial of cert, Alito and Clarence Thomas railed against Obergefell and its “ruinous consequences for religious liberty.” Then there was Alito’s *majority* opinion in Dobbs, which creates parallels between the right established in Obergefell and reproductive freedom, as they’re not “deeply rooted in history.” And, of course, the concurrence in that case written by Clarence Thomas explicitly says the Court should “reconsider” its jurisprudence on marriage equality (as well as the Court’s holdings on consensual sexual contact and contraception).
So, sure, as Alito notes, the Dobbs decision didn’t overrule Obergefell. But that doesn’t mean Alito and as many “working judicial originalists” as he can muster won’t overturn marriage equality as soon as they’re able.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
The post Samuel Alito Hurls Digs At Originalists Not As Extreme As He Is appeared first on Above the Law.
Never let it be said that Samuel Alito rests on his laurels. Apparently a far-right majority on the Supreme Court is not enough for Alito, and the Supreme Court justice spent time last week ahead of the Court’s new Term trying to goad judges into more extreme decisions.
Appearing at an event at ASS Law — that is, George Mason University’s Antonin Scalia Law School — Alito described himself as a “working judicial originalist” who “strives to achieve originalist aims while working within the framework of our legal system.” But he had some harsh words for other jurists that use the originalist moniker.
Alito specifically called out what he termed the “wrong turns” of originalism — which seem designed to encourage more extreme right results. As reported by Law.com:
The first, he said, was displaying “insecure” originalism, which he described as people who remain on the “defensive” and are “haunted” by accusations of judicial activism. These originalists, he said, are “allergic” to any discussion of the value of the results produced by originalist methodologies.
“That is a mistake,” Alito said, asserting that it is important for originalists to focus on what he viewed as the positive outcomes of interpreting the Constitution by looking to the ordinary public meaning at the time of its ratification.
“More than any other theory, it furthers the common good,” Alito said.
Ah, remember when activist judge was the ultimate conservative insult for liberal jurists? To assuage those who might be squicked out by the dig being rightly turned back on originalists, Alito suddenly has a different angle — insult them as “insecure.” Real mature.
Alito took shots at a variety of originalism flavors, such as partial originalism, academic originalism, and black-and-white originalism — all to garner acolytes to his own personal judicial philosophy.
But what Alito said during his takedown of “Icarian originalism” should be deeply concerning for those that care about marriage equality.
One such example [of Icarian originalism], he said, were a group of professedly originalist scholars who argued in Obergefell that same-sex marriage was protected by an originalist interpretation of the 14th Amendment.
Alito said it was “impossible” to argue that the general public, following the ratification of the 14th Amendment in 1868, “required the states to recognize such unions.”
Alito concludes, “So from an originalist perspective, Obergefell should have been an easy decision.”
So, yeah, it really *is* time to worry about marriage equality. Though Alito added, “Obergefell is a precedent of the court that is entitled to respect afforded by the doctrine of stare decisis.” Continuing, “And as I said in my opinion for the court in Dobbs, more than once, nothing in Dobbs was meant to disturb that decision.” That’s… not actually comforting.
Roe was precedent, Chevron deference was precedent, and Humphrey’s Executor was precedent until they weren’t. Nothing in Alito’s mealy-mouthed comments changes the fact that the conservative movement is gunning for Obergefell. Especially not when you consider Alito’s unhinged dissent in Obergefell, and that he still can’t let go. In 2020, in a denial of cert, Alito and Clarence Thomas railed against Obergefell and its “ruinous consequences for religious liberty.” Then there was Alito’s *majority* opinion in Dobbs, which creates parallels between the right established in Obergefell and reproductive freedom, as they’re not “deeply rooted in history.” And, of course, the concurrence in that case written by Clarence Thomas explicitly says the Court should “reconsider” its jurisprudence on marriage equality (as well as the Court’s holdings on consensual sexual contact and contraception).
So, sure, as Alito notes, the Dobbs decision didn’t overrule Obergefell. But that doesn’t mean Alito and as many “working judicial originalists” as he can muster won’t overturn marriage equality as soon as they’re able.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].
