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Joel Alicea: The Originalist Jurisprudence of Justice Samuel Alito
Michael Ramsey

J. Joel Alicea (Catholic University of America — Columbus School of Law) has posted The Originalist Jurisprudence of Justice Samuel Alito (Harvard Journal of Law and Public Policy, Per Curiam, No. 13, 2023) (11 pages) on SSRN.  Here is the abstract:

Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”

This disagreement largely stems from the failure of many commentators to appreciate the complex ways in which Justice Alito’s understanding of the judicial role affects his constitutional methodology. He sees judging as a “practical activity” rather than a “theoretical” endeavor, a “craft” rather than a “science.” Judging is a trade passed down through generations of eminent jurists and learned “primarily from experience and from the example of others,” not a set of postulates to be mastered or a series of axioms to be applied. This view of the judicial role leads him to a methodology that is attuned to characteristics of our legal tradition that have long defined Anglo-American judicial practice, such as respect for the limits that the adversarial system imposes on judicial decisions. What emerges is a methodology drawn from the Founding era rather than imposed on it, a methodology that, I will argue, is rightly described as originalist.

Indeed, I would go further: Justice Alito is uniquely positioned to address two of the most significant dangers originalism faces in the coming years. The first is the difficulty of changing current doctrine to better accord with the original meaning of the Constitution, a challenge the originalist justices will confront more and more now that they constitute a majority of the Court. The second is the recent tendency of originalism to become increasingly abstract and difficult to distinguish from its longtime foe, living constitutionalism.

My argument will, therefore, be surprising to many readers: far from being an ersatz originalist, Justice Alito is originalism’s best chance at remaining a viable theory of constitutional adjudication in the years to come.

The article is part of a symposium on Justice Alito's jurisprudence, which has an impressive list of contributors: