Conservative Reviewers Accuse Supreme Court Justice Samuel Alito of Results-Driven Jurisprudence
Supreme Court Justice Samuel Alito’s recent book, *So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country*, has sparked an unexpected debate among right-leaning legal scholars and commentators. Rather than rallying unified praise from the political right, three recent reviews authored by conservative thinkers draw comparisons to longstanding liberal criticisms by accusing Alito of practicing a results-oriented form of jurisprudence.
The friction centers on Alito’s self-identification as an “originalist,” an interpretive approach popularized by the late Justice Antonin Scalia and championed by powerful conservative organizations like the Federalist Society. Originalism posits that the Constitution must be interpreted according to the public meaning of its words at the time of ratification. Proponents have long sold the methodology as an objective constraint designed to prevent judges from substituting their own personal preferences for established law.
However, conservative critics writing about Alito’s volume argue that his actual opinions frequently depart from this disciplined framework. Harvard law professor Jack Goldsmith, who led the Justice Department’s Office of Legal Counsel during the second Bush administration, observed in his review that Alito’s embrace of the originalist label is likely to surprise observers across the political spectrum. Goldsmith noted that early originalists framed the theory as a restrained alternative to “living constitutionalism,” a liberal approach that viewed the Constitution as an evolving charter meant to adapt to contemporary needs.
Similarly, Washington Post columnist Jason Willick argued that strict adherence to originalism can sometimes conflict with conservative political ambitions, noting that an honest application of the theory occasionally produces liberal outcomes. Willick suggested that Alito’s book attempts to maintain an alliance between conservatism and originalism, even though Alito himself readily employs non-originalist arguments when necessary to achieve a desired result.
Libertarian author Damon Root added that the approach described in Alito’s book closely resembles the results-oriented living constitutionalism that originalists ostensibly oppose. These domestic critiques are echoed by Alito’s ideological colleague on the bench, Justice Clarence Thomas. In the 2024 case *Consumer Financial Protection Bureau v. Community Financial Services*, the Court upheld the funding structure of the CFPB. Thomas wrote the majority opinion, explaining that the constitutional requirement for congressional appropriations merely demands a specified source of public money, a standard the bureau met.
In his dissent, Alito bypassed a strict legal reading of the appropriations clause to focus on centuries-old conflicts between the English Parliament and the monarchy. Thomas pointed out in his opinion that Alito never connected this historical summary back to the actual text of the Constitution, instead using historical anecdotes to arrive at an anti-regulatory conclusion. Legal observers have noted a consistent pattern in Alito’s jurisprudence aimed at dismantling major initiatives of the Obama administration, including the Affordable Care Act and financial reform legislation, alongside consistent dissents in major losses for the Trump administration.
Beyond institutional disputes, Alito’s book also revisits his dissent in the landmark 2015 marriage equality decision, *Obergefell v. Hodges*. He argues that legal protections for same-sex marriage expose traditional Americans to vilification and social pressure. Legal scholars have pointed out that this argument relies on social grievances rather than constitutional interpretation, as the First Amendment’s protections for free speech and religious exercise do not permit the denial of civil rights based on potential interpersonal friction.
Despite these ideological tensions, analysts suggest that the conservative legal movement remains heavily dependent on pragmatic justices like Alito. Originalism has historically served as a potent rhetorical tool to overturn long-standing precedents, as seen in the 2022 decision *Dobbs v. Jackson Women’s Health Center* abolishing the constitutional right to an abortion. Yet, because the historical record does not always align with modern conservative policy goals—such as affirmative action, which faced swift dismantling by the Court’s Republican majority despite historical evidence of early congressional support—the conservative legal project relies on flexible justices willing to secure preferred ideological outcomes when originalist arguments fall short.
