Conservative scholars criticize Justice Alito’s claim to originalism
Three right-leaning commentators argue that Justice Samuel Alito’s new book reveals a results-driven approach that conflicts with his self-identification as an originalist.
Justice Samuel Alito’s book So Ordered has drawn unexpected criticism from three conservative reviewers who claim his jurisprudence is driven by desired results rather than strict originalist analysis. They point to Alito’s tendency to invoke historical anecdotes after reaching a conclusion, as seen in his dissent on the Consumer Financial Protection Bureau case, and his partisan positions on the Affordable Care Act, abortion, and same-sex marriage.
Harvard law professor Jack Goldsmith, a columnist at one outlet, and libertarian author Damon Root argue that Alito’s flexible approach helps the Court achieve conservative outcomes even when originalist arguments fall short. The reviewers warn that the Republican legal strategy now depends on judges who can label themselves originalists while pursuing politically motivated goals. This internal critique may signal a growing rift within the conservative legal community over the usefulness of originalism.
Why it matters
The debate shows that even conservative legal elites question the consistency of the Court’s originalist claims.
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