I Read Justice Alito's Book so You Wouldn't Have To (And You Shouldn't)

Justice Alito titled his new "book," "So Ordered: An Originalist's View of the Constitution, the Court, and our Country." This project is not new, and it is not quite a "book." It is a compendium of previously given speeches reproduced in no particular order. Moreover, Justice Alito can, of course, call himself anything he wants, but his judging is not originalist in any meaningful sense of that term. This contradiction comes through most clearly through Alito's repeated obsession with the free exercise clause, which he treats as a super strong constitutional amendment while almost completely ignoring the establishment clause in the many speeches devoted to what Alito calls religious liberty. In terms of the "Court" and the "Country" referenced in the title, these speeches do provide insight into why Alito judges the way he does but not in the way he might have hoped, and that disconnect gets in the way of any serious self-reflection by the author. In short, this project is a complete mess.

So, a reasonable reader might ask a fair question, "then why devote time and energy to reading the book, much less writing about it?" The answer, for me, is that this collection of speeches provides yet another clear example of why legal realism provides a much more persuasive account of Supreme Court judging than any other competing theory. 

Justice Alito's chapters on originalism talk about the search for the original public meaning of constitutional provisions and how judges must follow that meaning wherever it may lead (leaving aside stare decisis). This road is not an easy one and "requires self-confidence. Originalists should not seek or expect praise from the media or a hostile legal academy." Alito as victim is a consistent canard throughout his speeches.

I can't speak for "the media," but as member of the legal academy, I own the label "hostile" when it comes to both originalism and Alito, and this book provides ample evidence supporting that hostility. Alito's alleged originalism supports my view (and that of many others) that originalism does no real work even on a Court with five self-identified originalists. 

In real life outside the four corners of this compendium of speeches, originalism barely plays a role in most Alito decisions. Moreover, it turns out that his originalism leads to all the results one would expect from Alito's priors: a strong preference for religion, antagonism towards same-sex marriage, robust gun rights, deregulation, anti-affirmative action, and anti-abortion. It turns out that the Constitution's imprecise text and contested histories behind the text all lead to the same destination: judicial opinions consistent with Alito's political, moral, and religious values. It is the priors, not judicial investigation of original meaning, that best explains Alito's jurisprudence.

A glaring and representative example of this problem is how Alito treats the problem of judicially required religious exemptions from generally applicable laws. Alito praises Justice Scalia throughout the book (as one would expect) but carves out from that admiration one of the most important majority opinions Scalia ever wrote. In Employment Division v. Smith, Scalia's opinion for the Court rejected judicially required religious exemptions from generally applicable laws. Alito really, really, really wants to overturn Smith.

Why does Alito feel that judges should grant such exemptions freely and often? First, there's the whole war on religion nonsense that permeates the speeches. Second, Alito says throughout the book that freedom of religion is the most important freedom (a highly contestable value judgment). And third, and here is his only originalist defense of the idea, he writes about the importance of the exemptions given to certain minority religions around the time of the Founding from military service and required oaths. But what Alito does not mention is that these exemptions were provided by legislatures, not judges. 

Most legal scholars accept that legislatures may provide exemptions from generally applicable laws for religious conduct, but that was not the issue in Smith or any other Supreme Court case Alito discusses. The hard issue, which for most of our country's history has been answered in the negative, is whether legislatures must grant such exemptions, and if they don't, should judges require them. On that issue, Alito is all values and little history, just like modern originalism.

Alito's description of the cases pitting what he calls religious liberty against the rights of LGBTQ folks is quite simply chilling in its falsity. In the Masterpiece Cakeshop case, a Colorado baker who makes wedding cakes did not want to provide his services to a same-sex couple. This refusal violated a generally applicable Colorado law that prohibited businesses from discriminating against people because of their sexual orientation. In describing the case, Alito sees the baker as a victim of our country's coercive political correctness which he says improperly denounces religious hostility to LGBTQ rights (part of the ominous war on religion in America). Alito says, "What we see in these and other cases is a refusal to live in peace with those who violate the new moral code." 

But the case had nothing to do with a "new moral code," but a generally applicable non-discrimination law enacted by the Colorado legislature which never mentions religion (or morality) at all. Alito also argues repeatedly that the plaintiffs in Masterpiece could have and did obtain a wedding cake from other vendors, so they suffered no harm. The absurdity of that argument can be seen in the long history of racial discrimination against Black Americans often couched in religious freedom terms. Would Alito say that racial discrimination by religious objectors is lawful even in the face of state laws prohibiting such behavior if Black people could obtain the desired food, lodging, or other services elsewhere? 

Well, he might because Alito thinks religious liberty is the most important of all rights and leads to the protection of other valuable ideas such as freedom of speech and association. He devotes an entire Chapter (I should say reproduced speech) to "Pope John Paul II and the Centrality of Religious Liberty." According to Alito, Pope John Paul II correctly identified religious liberty as the most important value in any free society (food, clothing, and shelter not so much). Alito makes it clear he could not agree more.

There is nothing intrinsically wrong about this paean to the Pope but in combination with other speeches devoted to the experiences of Catholics and Italians in America (separate speeches) one understands that it is Alito's religious dogmatism and personal experiences, not his alleged originalism, that does the work in real cases. Legal realism wins.

Alito's obsession with the alleged war on religious liberty shows itself again in his description of Fulton v. City of Philadelphia. Philadelphia’s foster care system relies on cooperative arrangements between the City and private foster care agencies. The City enters standard annual contracts with these agencies to place children with foster families. The plaintiff Catholic Social Services ("CSS") had contracted with the City to provide foster care services for a long time but refused on religious grounds to certify same-sex married couples. 

CSS was informed by the City that unless it agreed to certify same-sex couples the City would no longer refer children to the agency or enter a foster care contract with it in the future. The City explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency’s contract with the City as well as the non-discrimination requirements of the city-wide Fair Practices Ordinance, neither of which said anything about religion. The Court ruled that the non-discrimination requirement somehow violated the free exercise clause. Alito would have gone further than the majority and overturned Smith, but the majority decision was justified on narrower grounds. 

Alito's description of the case is bizarre. Please remember this is a case involving the City putting conditions in its contracts that have nothing to do with religion--just non-discrimination based on various factors, including sexual orientation. But Alito transformed a non-discrimination requirement (that only applied if an organization wanted city money) into the claim that "very existence of an organization that expressed disapproval of same-sex marriage was unacceptable" to the politically correct City of Philadelphia.

But this case was not about the government punishing a group that was hostile to same-sex marriage. It was about an organization that would not certify same-sex couples as fit parents for the purpose of placing children in foster care. CSS could still spread their anti same-sex marriage views all over the world, did not have to refrain from any religious exercise or conduct, and was free to help any children it wanted to be placed with parents. What CSS was not allowed to do was discriminate against same-sex couples using the city's money and resources. 

In no way was this a case about a City saying the "very existence" of an organization hostile to same-sex marriage was unacceptable. Just substitute organizations with a religious objection to interracial couples instead of same-sex couples into the facts of the case and the problem becomes obvious. A city not giving money to an organization because of its discriminatory conduct (not speech) is a far cry from the City refusing to tolerate the "very existence" of the organization.

And that is how it goes throughout the speeches. All of the constitutional results Alito favors are also and inevitably supported by the Constitution (and the Republican Party). There are other speeches about baseball and the Gettysburg Address and unrelated matters but there is little rhyme or reason to why these speeches are included. But make no mistake, there are recurrent themes within these unrelated speeches: religious liberty is the most important right, there is an active war on religion, Obergefell was wrongly decided, and conservative judges are under attack from the liberal media and the progressive legal academy. There is a strong sense of victimhood running through the compendium. 

My favorite passage in the book is this one:

Judges, just like everybody else, prefer to be liked or at least not hated. When I've attended a concert or play and the performers have received a standing ovation, I have sometimes thought, "wouldn't it be nice if judges were treated like that when, after a lot of hard work, they hand down a well-reasoned decision in an important case?' But that is not our lot, and we have to put aside our natural inclinations and do what the law demands.

It turns out that what "the law demands" lines up exactly with what Alito prefers. But it also turns out that Alito is no stranger to standing ovations.  He got one here, and here, and my guess is whenever he gives a public speech he gets such an ovation, and he gives a lot of speeches, as exemplified by this "book," which is a collection of 19 of them. 

That disconnect is a perfect symbol for this facile collection of speeches and Alito's entire judicial career. There is no war on religion in America, and Alito does not decide cases like an originalist. But he is truly beloved by the Federalist Society and other conservative and religious groups. Thus, a question raised by this "book" is why all of that admiration leaves Alito feeling like a victim and an underdog. That's not a question I care about, however, and neither should you.

This review is dedicated to the inspiring memory of Sherry Colb.

Eric Segall