Practical Originalism
Defending Justice Alito's Judicial Philosophy
“Less concerned with abstract theory and more concerned with allowing judicial rulings to function in the real world.” That is how the Wall Street Journal described Justice Alito’s approach to deciding cases in an article published last weekend. The Journal added that Alito has a “complicated relationship with originalism.” If that assessment is true, then no justice has a straightforward relationship with the approach.
Spanning Trump’s second term, the article tallied how often each Supreme Court justice sided with President Trump’s positions. It found that Alito led the Court with an 89% agreement rate. The piece then asked why Justice Alito agreed with the President so often, even though Justices Thomas and Gorsuch had similar rates of 88% and 84%, respectively. By contrast, Justice Jackson’s intense opposition to Trump, ruling against him 98% of the time, was not mentioned once. The fixation on Alito as an outlier does not make sense based on the data, but also on the deeper discussion of originalist.
In its discussion of Justice Alito, the article attempted to summarize his jurisprudence, which he has called “practical originalism.” Following the lead of most courtwatchers, it portrays Alito’s approach as non-originalist, or at least originalist only when convenient. While it is true that Alito has not always labeled his method “originalism,” he need not adopt the name for the label to apply. Justice Alito is an originalist, but his approach to the methodology differs in three key ways.
First, Alito’s originalism is not textualism. Bostock v. Clayton County (2020) offers the clearest example of this, though other cases illustrate the point too. In Bostock, Justice Gorsuch’s majority opinion relied on the literal meaning of the word “sex” to convert sex discrimination into sexual-orientation discrimination. Dissening, Alito made clear that this brand of textualism was sold separately from the originalist package he had signed up for. “There is only one word for what the Court has done today,” he wrote, “legislation.” The Court, he concluded, went too far and changed too much.
One year later, in Facebook v. Duguid (2021), a case involving the definition of an “automatic telephone dialing system,” Alito wrote separately to critique the majority’s reliance on the series-qualifier canon, a tool Justice Scalia had discussed in his book Reading Law. Justice Alito concurred only in the judgment, writing separately to caution against overreliance on the canon. He warned that it “is highly sensitive to context” and that “[o]ften the sense of the matter prevails.” Alito stressed that, though useful in many cases, the series-qualifier canon should not be treated as an inflexible rule. Its application, he suggested, can sometimes feel strained or overly mechanical, and courts should remain attentive to context and the most natural reading of the text rather than letting any single canon dictate the outcome. This disdain for overly rigid rules defines Alito's conception of originalism as a whole.
After the question of how to read the text, originalists debate most fiercely the role of precedent and the weight of stare decisis. Contrary to his reputation as a justice “in the bag” for conservative outcomes, Alito preserves precedent more often than Justices Thomas or Gorsuch. He often refuses to question precedents unless a party properly raises the issue. By comparison, many of Justice Thomas’s court-leading fifteen concurrences last term were solo opinions advocating exactly that. Justice Gorsuch also joins this approach too.
One example of Alito's restraint comes from American Legion v. American Humanist Ass’n (2019). Alito’s majority opinion upheld a publicly displayed memorial cross but stopped short of fully overruling the 48-year-old Lemon test. Justices Thomas and Gorsuch concurred only in the judgment and criticized Alito for not discarding the non-originalist Lemon framework outright. Alito’s restraint reflects his belief that stare decisis still matters and that justices should approach overturning precedent with caution.
Similar to his approach to precedent, Justice Alito takes a more measured stance toward doctrines that many originalists dismiss as products of judicial activism, particularly substantive due process. He has often worked within established frameworks like the Glucksberg test when they produce results he views as appropriate and within the bounds of reason
Most famously, Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization (2022) applied the Glucksberg test to conclude that “the right to abortion is not deeply rooted in the Nation’s history and tradition.” He carefully wove in historical evidence while working within the existing doctrinal structure. This approach, shared by three other justices, led Justice Thomas to concur separately and argue that substantive due process should be abandoned entirely. Consistent with his emphasis on judicial restraint, Alito’s originalism does not automatically discard non-originalist precedents.
Timbs v. Indiana (2019) shows the same approach yielding a non-conservative result. Alito joined Justice Ginsburg’s majority opinion incorporating the Excessive Fines Clause through the Due Process Clause because it is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” Justices Gorsuch and Thomas concurred but distanced themselves from the due-process rationale, preferring the Privileges or Immunities Clause. Alito viewed that step as unnecessary.
Alito’s unique approach to originalism does not mark a departure from the methodology. When judged by its core features, it reinforces the principles originalists originally set out to achieve. Justice Scalia once said the Court should simply “start getting it right.” Revisiting every past error, he maintained, was permissable but not prudent. Giving appropriate weight to the reasonable, rather than the literal, also fits comfortably within the broader originalist project too. Scalia often referred to “a skilled, objectively reasonable user” of language as the basis for originalist interpretation. Both as a matter of prudence and first principles, practical originalism shares much with its more commonly discussed counterparts.
Justice Alito’s philosophy of practical originalism contains more nuances than those discussed here, many of which his forthcoming book will likely explore. Two decades on the Court already reveal how his approach differs from that of his most conservative colleagues, if only in degree. Practical originalism may sound like a departure at first glance, yet if Alito’s variant proves anything, it may be the truest form of originalism.
Ethan Savka is a student at Hillsdale College and the founder of Emergency Docket. You can find him at @eesavka online.