The surprising conservative backlash against Justice Alito

Justice Samuel Alito, a member of the US Supreme Court, has published a new book titled "So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country". The book primarily consists of Alito's previous speeches, rather than presenting novel ideas. However, the reception to the book among conservative writers, who typically align with Alito politically, has been surprisingly critical.

Three reviews of Alito's book, all penned by right-leaning authors, echo liberal criticisms of Alito, suggesting that he is not a true adherent of the originalist approach to the Constitution. These critics argue that Alito tends to prioritize outcomes he favors, rather than applying originalist principles consistently.

Originalism, for those unfamiliar, is a legal philosophy that believes the only valid way to interpret the Constitution is to determine what its authors intended when it was ratified. Originalism is a cornerstone of many conservative legal arguments, as it provides a stable framework that can be used to predict the Court's decisions. However, some of Alito's critics contend that his approach to judging is not strictly originalist, and that he often bends the rules to reach the results he desires.

For instance, Harvard law professor Jack Goldsmith, a conservative who has previously criticized originalism, points out that many originalists, including Justice Antonin Scalia, once portrayed it as a more restrained alternative to "living constitutionalism". The latter approach interprets the Constitution as a flexible document that can evolve to meet modern needs.

By treating the Constitution as a static document, originalists hoped to curb what they saw as a progressive transformation of American society, which they believed began with landmark decisions expanding rights such as criminal defense, religious expression in public schools, and reproductive rights.

Given that conservatives now dominate the Supreme Court, the utility of originalism for this movement is debatable. Critics argue that while originalism might help conservatives retain control of the Court, it may hinder their ability to achieve their political objectives. Some conservative writers suggest that Alito's willingness to adopt non-originalist views when convenient allows him to maintain his affiliation with the Federalist Society, a powerful conservative bar association that champions originalism. However, this flexibility may also weaken the movement's intellectual coherence.

Ultimately, Alito's stance seems to be that he can remain an "originalist" while occasionally straying from the strict interpretation of the Constitution. This approach might allow him to continue enjoying the prestige and political influence that come with being a celebrated figure in the Federalist Society, even as he navigates the complex relationship between originalism and practical conservatism.