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05/06/2017

Calvin TerBeek on Justice Alito
Michael Ramsey

At The Faculty Lounge, Calvin TerBeek (guest blogging): Is Justice Alito a Crit (or Just a Movement Conservative)?  From the introduction: 

Given the larger current political environment, it is perhaps understandable a rather remarkable speech Justice Alito gave at the Claremont Institute in early February received relatively little media attention (Mark Joseph Stern excepted). In addition to setting forth a robust constitutional conservatism—not, notably, couched in the narrative of originalism--Alito also explicitly advocated for the larger conservative political agenda, in the process invoking decades-old resentments and through lines in postwar conservatism. This was not a Scalian speech arguing for originalism, but more in the spirit of William F. Buckley, one of Alito’s intellectual heroes--Alito's 1985 DOJ application, declared, "I am and always have been a conservative" and that the "greatest influences on my views" were Buckley and Goldwater. While the critical legal studies movement is rightly associated with the Left, Alito appears to be the mirror image of a still-hypothetical Leftist crit justice (Douglas was the closest, Brennan's story is more complex). It is difficult to read the Claremont speech and think otherwise. Alito is not only hinting at where he sees the Court moving with five conservative votes now, but how the conservative movement, from NR-style “fusionism,” Goldwater, the New Right, to the Federalist Society ecosystem, all shaped his worldview. This is a speech worth paying attention to.

I'm not sure, though, that the post or the speech establishes that Justice Alito is not an originalist (or at least not originalist-influenced) in his judicial opinions.  Indeed, the first substantive example the post goes on to give, involving the growth of the administrative state, seems strongly originalist-influenced to me.  Nonetheless, it is interesting to speculate about the possible emergence of a nonoriginalist conservative judicial voice, and what that would mean for originalism.