Alito specifically called out what he termed the \u201cwrong turns\u201d of originalism \u2014 which seem designed to encourage more extreme right results. As reported by<\/a> Law.com:<\/p>\n The first, he said, was displaying \u201cinsecure\u201d originalism, which he described as people who remain on the \u201cdefensive\u201d and are \u201chaunted\u201d by accusations of judicial activism. These originalists, he said, are \u201callergic\u201d to any discussion of the value of the results produced by originalist methodologies.<\/p>\n \u201cThat is a mistake,\u201d 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.<\/p>\n \u201cMore than any other theory, it furthers the common good,\u201d Alito said.<\/p>\n<\/blockquote>\n Ah, remember when activist judge was the ultimate conservative insult for liberal jurists<\/a>? To assuage those who might be squicked out by the dig being rightly turned back on originalists, Alito suddenly has a different angle \u2014 insult them as \u201cinsecure.\u201d Real mature.<\/p>\n Alito took shots at a variety of originalism flavors, such as partial originalism, academic originalism, and black-and-white originalism \u2014 all to garner acolytes to his own personal judicial philosophy.<\/p>\n But what Alito said during his takedown of \u201cIcarian originalism\u201d should be deeply concerning for those that care about marriage equality.<\/p>\n One such example [of Icarian originalism], he said, were a group of professedly originalist scholars who argued in\u00a0Obergefell\u00a0<\/em>that same-sex marriage was protected by an originalist interpretation of the 14th Amendment.<\/p>\n Alito said it was \u201cimpossible\u201d to argue that the general public, following the ratification of the 14th Amendment in 1868, \u201crequired the states to recognize such unions.\u201d<\/p>\n<\/blockquote>\n Alito concludes, \u201cSo from an originalist perspective,\u00a0Obergefell\u00a0<\/em>should have been an easy decision.\u201d <\/p>\n So, yeah, it really *is* time to worry about marriage equality. <\/a>Though Alito added, \u201cObergefell <\/em>is a precedent of the court that is entitled to respect afforded by the doctrine of stare decisis.\u201d Continuing, \u201cAnd as I said in my opinion for the court in Dobbs<\/em>, more than once, nothing in Dobbs<\/em> was meant to disturb that decision.\u201d That\u2019s\u2026 not actually comforting.<\/p>\n Roe <\/em>was precedent<\/a>, Chevron<\/em> deference was precedent<\/a>, and Humphrey\u2019s Executor<\/em> was precedent<\/a> until they weren\u2019t. Nothing in Alito\u2019s mealy-mouthed comments changes the fact that the conservative movement is gunning for Obergefell<\/em>. Especially not when you consider Alito\u2019s unhinged dissent in\u00a0Obergefell<\/em>, and that\u00a0he still can\u2019t let go.<\/a>\u00a0 In 2020, in a denial of cert, Alito and Clarence Thomas railed<\/a> \u00a0against Obergefell<\/em> and its \u201cruinous consequences for religious liberty.\u201d Then there was Alito\u2019s *majority* opinion in\u00a0Dobbs<\/em>, which\u00a0creates parallels<\/a>\u00a0between the right established in\u00a0Obergefell\u00a0<\/em>and reproductive freedom, as they\u2019re not \u201cdeeply rooted in history.\u201d And, of course, the\u00a0concurrence in that case written by Clarence Thomas<\/a>\u00a0explicitly says the Court should \u201creconsider\u201d its jurisprudence on marriage equality (as well as the Court\u2019s holdings on consensual sexual contact and contraception).<\/p>\n So, sure, as Alito notes, the Dobbs<\/em> decision didn\u2019t overrule Obergefell<\/em>. But that doesn\u2019t mean Alito and as many \u201cworking judicial originalists\u201d as he can muster won\u2019t overturn marriage equality as soon as they\u2019re able.<\/p>\n The post Samuel Alito Hurls Digs At Originalists Not As Extreme As He Is<\/a> appeared first on Above the Law<\/a>.<\/p>\n 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\u2019s new Term trying to goad judges into more extreme decisions.<\/p>\n Appearing at an event at ASS Law \u2014 that is, George Mason University\u2019s Antonin Scalia Law School<\/a> \u2014 Alito described himself as a \u201cworking judicial originalist\u201d who \u201cstrives to achieve originalist aims while working within the framework of our legal system.\u201d But he had some harsh words for other jurists that use the originalist moniker.<\/p>\n Alito specifically called out what he termed the \u201cwrong turns\u201d of originalism \u2014 which seem designed to encourage more extreme right results. As reported by<\/a> Law.com:<\/p>\n The first, he said, was displaying \u201cinsecure\u201d originalism, which he described as people who remain on the \u201cdefensive\u201d and are \u201chaunted\u201d by accusations of judicial activism. These originalists, he said, are \u201callergic\u201d to any discussion of the value of the results produced by originalist methodologies.<\/p>\n \u201cThat is a mistake,\u201d 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.<\/p>\n \u201cMore than any other theory, it furthers the common good,\u201d Alito said.<\/p>\n<\/blockquote>\n Ah, remember when activist judge was the ultimate conservative insult for liberal jurists<\/a>? To assuage those who might be squicked out by the dig being rightly turned back on originalists, Alito suddenly has a different angle \u2014 insult them as \u201cinsecure.\u201d Real mature.<\/p>\n Alito took shots at a variety of originalism flavors, such as partial originalism, academic originalism, and black-and-white originalism \u2014 all to garner acolytes to his own personal judicial philosophy.<\/p>\n But what Alito said during his takedown of \u201cIcarian originalism\u201d should be deeply concerning for those that care about marriage equality.<\/p>\n One such example [of Icarian originalism], he said, were a group of professedly originalist scholars who argued in\u00a0Obergefell\u00a0<\/em>that same-sex marriage was protected by an originalist interpretation of the 14th Amendment.<\/p>\n Alito said it was \u201cimpossible\u201d to argue that the general public, following the ratification of the 14th Amendment in 1868, \u201crequired the states to recognize such unions.\u201d<\/p>\n<\/blockquote>\n Alito concludes, \u201cSo from an originalist perspective,\u00a0Obergefell\u00a0<\/em>should have been an easy decision.\u201d <\/p>\n So, yeah, it really *is* time to worry about marriage equality. <\/a>Though Alito added, \u201cObergefell <\/em>is a precedent of the court that is entitled to respect afforded by the doctrine of stare decisis.\u201d Continuing, \u201cAnd as I said in my opinion for the court in Dobbs<\/em>, more than once, nothing in Dobbs<\/em> was meant to disturb that decision.\u201d That\u2019s\u2026 not actually comforting.<\/p>\n Roe <\/em>was precedent<\/a>, Chevron<\/em> deference was precedent<\/a>, and Humphrey\u2019s Executor<\/em> was precedent<\/a> until they weren\u2019t. Nothing in Alito\u2019s mealy-mouthed comments changes the fact that the conservative movement is gunning for Obergefell<\/em>. Especially not when you consider Alito\u2019s unhinged dissent in\u00a0Obergefell<\/em>, and that\u00a0he still can\u2019t let go.<\/a>\u00a0 In 2020, in a denial of cert, Alito and Clarence Thomas railed<\/a> \u00a0against Obergefell<\/em> and its \u201cruinous consequences for religious liberty.\u201d Then there was Alito\u2019s *majority* opinion in\u00a0Dobbs<\/em>, which\u00a0creates parallels<\/a>\u00a0between the right established in\u00a0Obergefell\u00a0<\/em>and reproductive freedom, as they\u2019re not \u201cdeeply rooted in history.\u201d And, of course, the\u00a0concurrence in that case written by Clarence Thomas<\/a>\u00a0explicitly says the Court should \u201creconsider\u201d its jurisprudence on marriage equality (as well as the Court\u2019s holdings on consensual sexual contact and contraception).<\/p>\n So, sure, as Alito notes, the Dobbs<\/em> decision didn\u2019t overrule Obergefell<\/em>. But that doesn\u2019t mean Alito and as many \u201cworking judicial originalists\u201d as he can muster won\u2019t overturn marriage equality as soon as they\u2019re able.<\/p>\n 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\u2019s new Term trying to goad judges into more extreme decisions. Appearing at an event at ASS Law […]<\/p>\n","protected":false},"author":3,"featured_media":134728,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-134759","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/10\/IMG_5243-1-scaled-e1623338814705-620x568-HAgm0K.jpg?fit=620%2C568&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/134759","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=134759"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/134759\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/134728"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=134759"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=134759"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=134759"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast<\/a>, and co-host of Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email her<\/a> with any tips, questions, or comments and follow her on Twitter @Kathryn1<\/a>\u00a0or Mastodon @Kathryn1@mastodon.social.<\/a><\/em><\/strong><\/p>\n![\"\"](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2020\/11\/GettyImages-1134321153-300x200.jpg?resize=300%2C200&ssl=1\" "\\"\\"")
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\nKathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast<\/a>, and co-host of Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email her<\/a> with any tips, questions, or comments and follow her on Twitter @Kathryn1<\/a>\u00a0or Mastodon @[email\u00a0protected].<\/a><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"