Supreme Court Justice Samuel Alito touched on two lightning rod cases Friday in explaining the pitfalls and promises of originalism.
The conservative justice mentioned the Obergefell ruling that legalized same-sex marriage and the sweeping presidential immunity ruling the court handed down last year as he opined about how adherents to his legal theory of choice can go astray.
Originalism, which several justices on the high court embrace, aims to follow the Constitution as it would have been understood when it was written.
Alito described himself as a “working judicial originalist,” or a judge who “strives to achieve originalist aims while working within the framework of our legal system.”
It’s a perspective best understood through the process of elimination, he said, asking the small crowd at the annual conference held by Antonin Scalia Law School’s Center for the Study of the Administrative State to envision an originalist judge driving down a highway with seven turn signs.
“Six of these, in my view, are definitely wrong turns, and the seventh presents an originalist judge with an important choice,” Alito said.
Those wrong turns spanned “insecure” originalists who refuse to proclaim their “desirable” results to those who fly “too close to the sun,” like the Greek mythological figure Icarus.
The latter loses sight of what the Constitution’s text would have meant to ordinary people at the time it was framed and adopted, he said.
He pointed to a scholarly brief in Obergefell v. Hodges, the Supreme Court’s 2015 decision establishing a constitutional right to same-sex marriage, as a prime example.
The question in Obergefell for an originalist was whether the term “liberty” in the 14th Amendment was understood at the time of its adoption to include the right to same-sex marriage, Alito said.
He argued that the answer to that question was “unmistakable,” no matter what one may think about same-sex marriage as a matter of “morality or public policy.” But the brief’s author contended the 14th Amendment’s Equal Protection Clause established a “broad assurance of equality for all,” meaning a state could not deny the right to marriage to anyone under an originalist view.
However, he emphasized that he was “not suggesting” that the decision in that case should be overruled in commenting about it Friday.
“Obergefell is a precedent of the court that is entitled to respect afforded by the doctrine of stare decisis,” Alito said. “And as I said in my opinion for the court in Dobbs, more than once, nothing in Dobbs was meant to disturb that decision.”
Another wrong turn he termed “black-and-white originalism,” where jurists stick only to the text of the Constitution instead of examining its “very structure” — a method he claimed emerges from the “anxieties of originalism’s youth.”
Criticisms of the Supreme Court’s ruling giving largely shielding former presidents from criminal prosecution for actions they take while in office likewise fail to take this into account, Alito said.
“An immunity, I should add, that applies to all presidents,” Alito said.
Yet another wrong turn enables the “insecure mindset” that leads some originalists to worry they’re engaging in judicial activism when cases are decided in their favor.
An originalist judge should go back and check their work if their analysis under the legal theory turns out a result that “makes no sense,” he said, drawing a comparison to a scene in “Oliver Twist” where the beadle of Twist’s orphanage surmises that “the law is a ass — a idiot” if it must be applied in a particular way.
“A conscientious judge has no choice but to do what the law requires,” Alito said Friday. “But we do not have an asinine or idiotic constitution, so an originalist judge should not cavalierly or happily embrace results that defy common sense.”
He concluded his remarks by claiming that originalism furthers the common good “more than any theory” and generally produces good results. He hoped to keep the jurisprudence on course by explaining where it could go wrong, he said.
“Originalism is not easy, but if originalist judges stay in the course, I am confident that the theory can have a bright future,” he said.
