Samuel Alito is, with Clarence Thomas, one of the two most conservative sitting Supreme Court justices. In his 20 years on the highest bench, he has reliably voted for conservative positions—especially on social issues, criminal procedure, voting rights, discrimination, and religious liberty. He wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion. During the second Trump administration, he has so far voted more often than any other justice to uphold its initiatives. And in speeches, Alito has taken an unusual step for a sitting justice: He has become an active participant in the culture wars, opposing affirmative action, progressive campus orthodoxy, attacks on religious freedom, and hostility toward Judeo-Christian values.
Alito has now collected adaptations of 19 talks (all but six of them from the past decade) in So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country. Many of the wide-ranging essays are charming and genial, which will perhaps surprise those primed to expect an acerbic, embattled style. He includes an ardent fan’s primer on baseball’s lessons for life and law, a tribute to the “long-term vision of national greatness” in the Gettysburg Address, and an appreciation of the “long, deep, and sometimes scarring experience” of religious liberty’s great defender Karol Wojtyla, before he became Pope John Paul II.
As the subtitle suggests, the most important talks concern “originalism”—the view that the Constitution should be interpreted according to its meaning at ratification. Originalism is the credo of the conservative legal movement that since the 1980s has traveled from obscurity to triumph, marked by the arrival of a Supreme Court supermajority that is dismantling the revolutionary progressivism of the Warren (1953–69) and Burger (1969–86) Courts. Yet Alito’s embrace of the originalist label is also likely to come as a surprise to people on the left and the right.
[From the October 2025 issue: Jill Lepore on how originalism killed the Constitution]
Close observers of the Court have long seen Alito as a skeptic of orthodox originalism, and So Ordered, far from a paean to the philosophy, delivers a vigorous critique. In its place, Alito offers an approach that at times sounds like a conservative version of the judicial activism that originalism aimed to combat when liberals held sway on the Court. And the style of judging he defends, which he has practiced for decades, has now acquired currency: It dovetails with a Trump-era New Right conception of law that is unshackled by restraint and focused solely on conservative victory.
Alito joined the Reagan Justice Department in 1981 at age 31, just as the conservative legal counterrevolution against the Warren and Burger Courts was getting under way. There he argued cases before the Supreme Court and advised the White House and attorney general. He also became an active participant in the Federalist Society, founded in 1982, which quickly emerged as the intellectual home of conservative and libertarian legal thinking. In the government and out, Alito made plain his conservative bona fides and was immersed in formative discussions of originalism.
The doctrine was fashioned as a response to a liberal conception of judging called “living constitutionalism,” which celebrated the ability of the document’s “great principles to cope with current problems and current needs,” in the words of Justice William Brennan. Conservatives hoped that originalism would limit or reverse the progressive transformation of American society set in motion by Supreme Court decisions that had expanded criminal-defense rights, ended prayer in public school, recognized the rights to contraception and abortion, strengthened voting equality, and supported affirmative action and busing. Originalists also claimed the mantle of democratic legitimacy. The doctrine elevated what the American people had ratified in the past over unelected judges’ revisions to the Constitution based on modern values and personal preference.
Alito watched as Antonin Scalia, who joined the Supreme Court in 1986, became originalism’s greatest champion. Scalia, a former law professor, was a theorist who worked out originalism in academic lectures. His brilliant judicial opinions went on to make the theory and methods a creditable enterprise and, eventually, the defining conservative legal dogma. But when President George H. W. Bush made Alito an appellate judge in 1990, originalism had not yet achieved its central place in the movement. During a decade and a half on the court of appeals, Alito established a reputation as a careful jurist who wrote tightly reasoned opinions that were as conservative as the law would permit. Originalist argument played no significant role in his decision making.
In 2005, Bush’s son nominated Alito to replace Sandra Day O’Connor on the Supreme Court after his initial nominee, the White House counsel, Harriet Miers, withdrew amid bipartisan questions about her fitness. Alito was the credentialed, establishment legal conservative she wasn’t, a judge with a Federalist Society pedigree and a long record of case outcomes that proved he wouldn’t stray. During his confirmation hearings, critics dubbed him “Scalito” due to his conservative affinity with Scalia (and their Italian heritage). But originalism was barely mentioned in those hearings, and Alito made no concrete jurisprudential commitment to it.
When Alito joined Scalia on the Court, he maintained his traditionalist, lawyerly bent; eschewed theorizing; and paid close attention to case particularities. He continued to arrive at consistently conservative results, more forcefully articulated now without the constraint of possible Supreme Court reversal. He often broke with Scalia’s originalist decisions, especially when they aided criminal defendants, and he rarely dove deeply into original meaning. Alito famously poked fun when Scalia asked about the views of the Constitution’s ratifiers in a 2011 case about California’s regulation of minors’ access to violent video games. “I think what Justice Scalia wants to know is what James Madison thought about video games,” Alito said, to laughter in the courtroom. “Did he enjoy them?” More often, however, his skepticism remained muted.
A low point for the Court’s conservative wing came half a decade later. The 2015 Obergefell v. Hodges decision announced a constitutional right to same-sex marriage based on what Justice Anthony Kennedy, the swing vote on the bench, called the Court’s “reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Scalia’s dissent condemned this logic as a “judicial Putsch” that lacked “even a thin veneer of law” and rested solely on the preferences of “a select, patrician, highly unrepresentative panel of nine.” Alito joined neither Scalia’s dissent nor Thomas’s lengthy orthodox-originalist one. His own dissent emphasized same-sex marriage’s defiance of tradition and expressed concern that “those who cling to old beliefs” would, in the decision’s aftermath, “risk being labeled as bigots and treated as such by governments, employers, and schools.”
When Scalia died seven months after Obergefell, the conservative legal movement seemed near failure. Republican presidents had appointed three-quarters of the justices since Earl Warren had retired in 1969. The Federalist Society had trained two generations of lawyers and developed a formidable network that dominated federal judgeship hiring. Yet the Supreme Court still practiced living constitutionalism. When President Obama nominated Merrick Garland to replace Scalia, the Court seemed likely to tip decidedly progressive.
But then Senate Republicans denied Garland a hearing and Donald Trump defeated Hillary Clinton. By the end of 2020, Trump had put three young conservatives—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—on the Court, which promptly veered to the right. With Scalia gone and a conservative supermajority on the Court, Alito grew more confident in expressing impatience with orthodox originalism and in charting a new course for legal conservatism, especially in his extrajudicial writings and talks.
So Ordered decries judges who aim to be theorists and lays out a “working judicial” brand of originalism that reflects Alito’s decades of “hands-on experience.” In many respects, his approach inverts the orthodox view. He jettisons “restraint” as a goal and counsels that originalism “sometimes calls for bold action.” In marked contrast with Scalia, who believed that a judge who “always likes the results he reaches is a bad judge,” Alito tells jurists “who welcome occasions when their originalist analysis leads to results they dislike” to “shed this insecure mindset.” He also thinks that originalists should call attention to the value of the outcomes that their decisions produce. Unless the theory “is widely viewed as generally producing good results,” he argues, it won’t survive. He never explains what makes a result good and never considers that he and his colleagues—and the American people—disagree on that question.
Alito usefully highlights important theoretical conundrums for originalism. A central one is how to tell whether the invariably fuzzy meaning of an old term (equal protection, for example) should be applied in specific contexts that the Framers never imagined. Scholars offer an array of complex and clashing solutions to this and related difficulties. Alito invokes judicial “judgment” as the global solution. “Broadly worded constitutional provisions can be regarded as delegating a degree of authority to apply those provisions to new situations that could not be anticipated at the time of adoption,” he maintains. “Identifying just how far this delegation of authority extends calls for the exercise of judgment.”
The obvious problem is that this sounds suspiciously like the judge-specific, discretion-laden “reasoned judgment” that Kennedy invoked in the gay-marriage case—precisely what orthodox originalism aimed to eradicate. Many important constitutional clauses—not just equal protection but due process, freedom of speech, executive power—are broadly worded. And many issues that arise in connection with these terms could not have been anticipated in 1791 or 1868. To escape Scalia’s “judicial Putsch” verdict, Alito must explain why the judgment that he believes his kind of originalist justice often must exercise won’t be guided by ideological or other personal factors. But his explanations are thin and slippery.
Alito holds up Edmund Burke’s teachings about prudence and tradition as “invaluable” guides for the “many times when originalist jurists must exercise judgment.” But he otherwise defends Burke’s relevance to American judging only by noting that he and many other conservatives esteem him. Unexpectedly, Alito also voices great respect for the work of the Harvard Law professor and fellow Catholic Adrian Vermeule, an arch critic of originalism. Vermeule argues that the theory’s moral skepticism, “defensive crouch,” and allergy to considering outcomes render it “an obstacle to the development of a robust, substantively conservative approach to constitutional law.” He favors interpretation aimed at “the common good,” a concept associated with Catholic social teaching.
Although Alito resists some elements of the theory, his account of proper judging seeks to accommodate Vermeule’s criticisms—a contrast with the response of his Catholic and orthodox-originalist colleague Amy Coney Barrett, who dismisses it as marred by “all of the defects that originalists critiqued” in the 1980s. Alito also says his own version of originalism “furthers the common good,” and he even asks whether “an assessment of what the common good requires” might inform the Court’s judgment when original meaning cannot resolve an issue. It’s a question he refrains from answering.
Like Alito’s dissatisfaction with restraint and his insistence that originalists attend to outcomes, his reliance on ill-defined principles to steer judicial judgment when originalism is stymied will fuel the widespread view that he reads his conservative views into the Constitution. Nor do Alito’s several insightful essays on the art of good judging as a practical task grounded in “personal observation and experience” help much. He has a deserved reputation as a fine judicial craftsman, but his judging is filtered through a deeply traditional conservative outlook evident in almost every essay. This is the ideological element that invariably informs judicial judgment—left, right, and center—however much both orthodox originalists and Alito may purport to shun it.
Alito’s nominal adherence to originalism even as he struggles to revamp it is but one indication that the doctrine is becoming a zombie creed that functions more as a shibboleth than as an actual guide to conservative constitutional decision making.
Originalism certainly does not explain the Court’s sharp rightward turn since Barrett joined the bench in 2020. Only Thomas, Gorsuch, and Barrett regularly try to practice originalism, and they do so very unevenly. Most of the important recent conservative victories—including overturning Roe v. Wade, ending affirmative action in higher education, and giving Trump criminal immunity—were not resolved on the basis of original constitutional meaning. And countless non-originalist precedents remain untouched. The Roberts Court is becoming the “Conservative Warren Court,” as Richard Re of Harvard Law School has argued, because it has a “strong majority ideological alignment” that “wields its power in pursuit of its ideological goals” and has soft-pedaled many of the limiting principles, including orthodox originalism, that once defined the movement.
Yet even as the conservative Court has moved right, it has managed to anger the much more right-wing second Trump administration. It has upheld many aspects of Trump’s program, most notably his “unitary executive” power to fire heads of independent agencies. But the Roberts Court was trending toward this ruling before Trump came on the scene. More remarkable than how many Trump 2.0 initiatives the Court has validated is how often the moderate conservatives on the Court (some combination of Roberts and the three Trump-appointed justices) have joined liberals to block initiatives—on tariffs, birthright citizenship, National Guard deployment, deportations under the Alien Enemy Act, Federal Reserve independence, mail-in ballots, and more. These decisions have enraged the president and his supporters, who have excoriated the orthodox-originalist Barrett, Scalia’s former clerk, in especially vicious terms.
Their fury is more encompassing. Federalist Society lawyers and “originalist judges” are blamed for tying the president’s hands during his first term, for inadequately unwinding progressive constitutionalism, and for disloyalty in not backing Trump when he challenged the 2020 presidential-election results. The president himself has denounced the Federalist Society and hired personally loyal lawyers unburdened by jurisprudential niceties who are eager to implement the administration’s self-described “radical” constitutional agenda.
In their attacks on the Court and its moderate conservatives, the Trump administration and its allies are articulating a New Right idea of conservative judging. That view despises originalism’s value-neutrality, prizes conservative results, admires judges with the “courage” and “loyalty” to uphold Trump’s program, and views adverse decisions as evidence of timidity, establishment capture, or betrayal.
This New Right has its own think tanks and advocacy groups. It has made inroads in Federalist Society chapters on campuses, including my own. The administration is grooming dozens of conservative lawyers to share its view of the law, and has placed at least one New Right stalwart, Emil Bove, on the federal bench. The old conservative legal movement is very far from dead. But its centrality has waned and its originalist commitments are no longer sacrosanct among conservatives.
Alito claims no association with the New Right, but his essays and work on the Court make plain why its legal camp venerates him. Alito, along with Thomas, has supported the Trump administration in every second-term case of importance, including with dissents in every major Trump loss. His results-focused jurisprudence, his culture-warrior profile, and his scorn for fainthearted conservative jurists mesh with the Trump-inspired movement.
Yet it would be a mistake to read Alito’s attempts to articulate a judicial philosophy as mere camouflage for a hard-right jurisprudence. So Ordered leaves the clear impression that he sees himself as a serious lawyer adhering to principles. If the principles are not as coherent as they might be, that does not distinguish him from most justices, now or in the past. What is curious is that Alito has articulated a semblance of a judicial philosophy at all, given his wariness about theory as a guide to judging. In the end, his essays serve as a marker of our bitterly fractured constitutional moment. And Alito himself remains an elusive yet powerful presence—the face on the Court, however unintended, of the Trumpian legal agenda.
This article appears in the November 2026 print edition with the headline “Zombie Originalism.”
Leave a Reply