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10/26/2016

Neil Siegel: The Distinctive Role of Justice Samuel Alito
Michael Ramsey

Neil Siegel (Duke University School of Law) has posted The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent (Yale Law Journal Forum, Vol. 126, p.164 (2016) ) on SSRN. Here is the abstract:   

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, is relatively young by Supreme Court standards (66 years old), is methodologically conventional, and is uniquely reliable. As a consequence, many conservatives love to celebrate him as the ideal Justice, and many liberals love to condemn him as politically driven.

However one feels about Justice Alito as a jurist, he is carving out a distinctive role for himself on the Court at a pivotal time.That role and this time should be of interest to people who care about the Court's work regardless of their ideology. Particularly in light of Justice Scalia's passing, Justice Alito has become the primary judicial voice of the many millions of Americans who appear to be losing the culture wars, including in battles over gay rights, women's access to reproductive healthcare, affirmative action, and religious exemptions.

Part I observes that Justice Alito relies upon a variety of “modalities” of constitutional interpretation; his conventional methodology distinguishes him only (albeit interestingly) from justices Scalia and Thomas. Looking elsewhere for what distinguishes Justice Alito from the rest of his colleagues, Part II observes that his tenth year on the Court coincides with a potentially significant moment in American constitutional history. Connecting the moment to the man, Part III examines Justice Alito’s distinctive role, which is most apparent in his majority opinion in Burwell v. Hobby Lobby Stores, Inc. and his dissent in Obergefell v. Hodges. There and elsewhere, Justice Alito voices the concerns of Americans who hold traditionalist conservative beliefs about speech, religion, guns, crime, race, gender, sexuality, and the family. These Americans were previously majorities in the real or imagined past, but they increasingly find themselves in the minority. Part IV considers two alternative characterizations of Justice Alito — one from conservatives (who may view Justice Alito as a Burkean conservative), and the other from liberals (who may view him as a movement conservative). The Conclusion suggests that Justice Alito’s distinctive role will likely be amplified in the years ahead, and identifies questions that follow for his supporters and critics.

My view is that Justice Alito is strongly influenced by originalism (I have called him "originalist-oriented") and not so distinct in approach from Justice Scalia (although of course they sometimes prominently disagreed, especially in areas where Scalia seemed more libertarian, and their tone is quite different).  It's true that Alito often reasons from precedent (especially precedent he likes); but that was also true of Scalia (thus leading critics to claim be was unfaithful to originalism, when in fact he just combined the two "modalities" [if we must use that word]).