Justice Alito defends populist originalism, questions constitutional right to same-sex marriage

Justice Samuel Alito (CNP/AdMedia/Sipa/Newscom)

In a recent Wall Street Journal article, based on his forthcoming book on the same subject, Supreme Court Justice Samuel Alito offers his perspective on constitutional originalism. However, his analysis raises more questions than it provides compelling answers. Nonetheless, he makes several interesting points about originalist methodology and specific constitutional issues. Below are a few of particular interest.

The Populist vs. Elitist Divide in Originalism

There is a longstanding debate among originalists regarding whose understanding of original meaning courts should apply:

• Ordinary people at the time of ratification
• Lawyers and well-informed experts
• Hypothetical "reasonable" readers (often assumed to be highly knowledgeable about legal doctrine)

I have called this the divide between "elitist" and "populist" versions of originalism. Alito clearly favors the populist approach:

When I think about the original public meaning of constitutional provisions, I sometimes envision a scene at a colonial-era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights. They read the text of the First Amendment and see that it prohibits Congress from making any law that impairs the free exercise of religion. What would they make of that language? How likely is it that these men had read John Locke's writing on church-state issues? Even if they had some rough awareness of his ideas, how likely is it that they would assume that Congress had incorporated those ideas in the First Amendment? Originalism looks for the original public meaning, not the meaning that the most well-read and philosophically minded men of the day might have adduced.

Potential Downsides of the Populist Approach

In taking this position, Alito appears to ignore potential drawbacks:

• Ordinary people may be ignorant about various constitutional issues
• They may struggle to interpret technical legal terms such as "writ of habeas corpus" or "bill of attainder"
• Populist approaches offer less guidance on unanticipated issues, such as new technologies

Elitist approaches have their own downsides, but advocates of either position should grapple with these tradeoffs. I explore this in greater detail in my 2012 law review article "Originalism and Political Ignorance" and in my earlier blog post on this topic.

My own view favors a hybrid approach: elite understandings are preferable for technical legal phrases that ordinary people would recognize as requiring expert interpretation. However, this remains a difficult issue requiring further consideration from originalists.

Original Public Meaning vs. Expected Applications

Alito's analysis also elides the distinction between original public meaning and original "expected applications." The former refers to the linguistic meaning of words; the latter refers to how those words were expected to apply to particular issues. Expected applications depend partly on factual understandings, which may change over time.

For example, Alito assumes originalism rejects a constitutional right to same-sex marriage because almost no one expected such a thing when the Fourteenth Amendment was ratified in 1868. He thus doubles down on his view that Obergefell v. Hodges (2015) was wrongly decided.

However, as discussed in the amicus brief I filed in that case (with Andrew Koppelman), there is a strong originalist case for Obergefell when combining the original linguistic understanding with new knowledge about same-sex relationships. This is particularly true if one accepts—as many originalists now do—that the Fourteenth Amendment bans most forms of sex discrimination.

The Due Process Clause vs. Privileges or Immunities Clause

On another Fourteenth Amendment issue, Alito reiterates his view that the Due Process Clause—not the Privileges or Immunities Clause—is the proper source for "unenumerated" rights, including incorporation of the Bill of Rights against state governments:

If we simply read the text of the 14th Amendment, the Due Process Clause seems an unlikely home for substantive rights. Another provision, the Privileges or Immunities Clause, declares that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." But in the Slaughter-House Cases (1873), the Supreme Court reduced that clause to minor importance. In McDonald [v. City of Chicago], prominent scholars filed a brief urging the court to jettison Due Process incorporation and revive Privileges or Immunities. During oral arguments, the attorney representing Otis McDonald latched onto this argument. He didn't get far. Justice Scalia interrupted him and said that while the Privileges or Immunities argument was "the darling of the professoriate," it was contrary to a century of case law. Scalia recommended that the attorney stick to those precedents. Why did Scalia, a former law professor, say that? Because accepting the Privileges or Immunities argument would have opened a can of worms. Libertarians, social conservatives, progressives, socialists and others could all make a pitch for whatever rights they favored.

On this issue, Alito differs with fellow conservative originalists Clarence Thomas and Neil Gorsuch, both of whom advocate reviving the Privileges or Immunities Clause.

It is ironic that Alito rejects Privileges or Immunities revival for fear of opening a "can of worms" that enables judges to "make a pitch for whatever rights they favored." This is precisely the argument Alito and other conservatives have long deployed against "substantive" due process. It is unclear why the Privileges or Immunities Clause would be worse. The extensive original meaning evidence about what rights qualify as "privileges or immunities" might actually make it less subject to judicial manipulation than substantive due process.

Stare Decisis and Reliance Interests

Alito emphasizes "the necessity, except in unusual circumstances, to heed precedent, since overturning it can have unsettling consequences." Despite his distaste for Obergefell, he indicated in a recent CBS interview that it likely should not be overturned because "a great deal had changed in the country as a result of Obergefell [and] [t]here was a lot of reliance in various ways on the decision in Obergefell." He refers here to the hundreds of thousands of same-sex couples who have married and started families in reliance on the ruling.

Inconsistencies in Alito's Approach

Skeptics will note that Alito has voted to overturn several longstanding precedents, most notably in Dobbs, which overturned Roe v. Wade (1973). Alito's argument that Roe did not engender significant reliance interests strikes me as unpersuasive. Many women likely relied on the availability of abortion to escape unwanted or medically dangerous pregnancies. This does not necessarily prove Dobbs wrong, but it does mean defenders of that decision need a better theory of weighing reliance interests against other considerations.

Alito is far from alone among Supreme Court justices in failing to develop a compelling answer to this question. Both liberal and conservative justices have struggled with it. As I have previously argued, "Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm." Even significant reliance interests might be overcome when maintaining a wrong precedent itself causes grave harm.

This is one reason Brown v. Board of Education and later decisions striking down segregation laws were justified, despite narrowing or overturning longstanding precedents that many governments had relied upon. Segregation laws caused such great harm that even substantial reliance interests had to be subordinated.

Similarly, if one believes—as many pro-lifers do—that abortion is the moral equivalent of murder, Dobbs might be justifiable even if Roe created substantial reliance interests. However, this approach requires courts to engage in a balancing of interests that many might argue is beyond judicial competence.

Conclusion

There is more to be said about Alito's Wall Street Journal article and CBS interview, and I expect many of these issues are covered in greater detail in his book. I may have more to say after reading it.