by
Chip
Somodevilla/Getty
Images)
Never
let
it
be
said
that
Samuel
Alito
rests
on
his
laurels.
Apparently
a
far-right
majority
on
the
Supreme
Court
is
not
enough
for
Alito,
and
the
Supreme
Court
justice
spent
time
last
week
ahead
of
the
Court’s
new
Term
trying
to
goad
judges
into
more
extreme
decisions.
Appearing
at
an
event
at
ASS
Law
—
that
is,
George
Mason
University’s
Antonin
Scalia
Law
School
—
Alito
described
himself
as
a
“working
judicial
originalist”
who
“strives
to
achieve
originalist
aims
while
working
within
the
framework
of
our
legal
system.”
But
he
had
some
harsh
words
for
other
jurists
that
use
the
originalist
moniker.
Alito
specifically
called
out
what
he
termed
the
“wrong
turns”
of
originalism
—
which
seem
designed
to
encourage
more
extreme
right
results.
As
reported
by
Law.com:
The
first,
he
said,
was
displaying
“insecure”
originalism,
which
he
described
as
people
who
remain
on
the
“defensive”
and
are
“haunted”
by
accusations
of
judicial
activism.
These
originalists,
he
said,
are
“allergic”
to
any
discussion
of
the
value
of
the
results
produced
by
originalist
methodologies.“That
is
a
mistake,”
Alito
said,
asserting
that
it
is
important
for
originalists
to
focus
on
what
he
viewed
as
the
positive
outcomes
of
interpreting
the
Constitution
by
looking
to
the
ordinary
public
meaning
at
the
time
of
its
ratification.“More
than
any
other
theory,
it
furthers
the
common
good,”
Alito
said.
Ah,
remember
when
activist
judge
was
the
ultimate
conservative
insult
for
liberal
jurists?
To
assuage
those
who
might
be
squicked
out
by
the
dig
being
rightly
turned
back
on
originalists,
Alito
suddenly
has
a
different
angle
—
insult
them
as
“insecure.”
Real
mature.
Alito
took
shots
at
a
variety
of
originalism
flavors,
such
as
partial
originalism,
academic
originalism,
and
black-and-white
originalism
—
all
to
garner
acolytes
to
his
own
personal
judicial
philosophy.
But
what
Alito
said
during
his
takedown
of
“Icarian
originalism”
should
be
deeply
concerning
for
those
that
care
about
marriage
equality.
One
such
example
[of
Icarian
originalism],
he
said,
were
a
group
of
professedly
originalist
scholars
who
argued
in Obergefell that
same-sex
marriage
was
protected
by
an
originalist
interpretation
of
the
14th
Amendment.Alito
said
it
was
“impossible”
to
argue
that
the
general
public,
following
the
ratification
of
the
14th
Amendment
in
1868,
“required
the
states
to
recognize
such
unions.”
Alito
concludes,
“So
from
an
originalist
perspective, Obergefell should
have
been
an
easy
decision.”
So,
yeah,
it
really
*is*
time
to
worry
about
marriage
equality.
Though
Alito
added,
“Obergefell
is
a
precedent
of
the
court
that
is
entitled
to
respect
afforded
by
the
doctrine
of
stare
decisis.”
Continuing,
“And
as
I
said
in
my
opinion
for
the
court
in
Dobbs,
more
than
once,
nothing
in
Dobbs
was
meant
to
disturb
that
decision.”
That’s…
not
actually
comforting.
Roe
was
precedent,
Chevron
deference
was
precedent,
and
Humphrey’s
Executor
was
precedent
until
they
weren’t.
Nothing
in
Alito’s
mealy-mouthed
comments
changes
the
fact
that
the
conservative
movement
is
gunning
for
Obergefell.
Especially
not
when
you
consider
Alito’s
unhinged
dissent
in Obergefell,
and
that he
still
can’t
let
go.
In
2020,
in
a
denial
of
cert,
Alito
and
Clarence
Thomas
railed
against
Obergefell
and
its
“ruinous
consequences
for
religious
liberty.”
Then
there
was
Alito’s
*majority*
opinion
in Dobbs,
which creates
parallels between
the
right
established
in Obergefell and
reproductive
freedom,
as
they’re
not
“deeply
rooted
in
history.”
And,
of
course,
the concurrence
in
that
case
written
by
Clarence
Thomas explicitly
says
the
Court
should
“reconsider”
its
jurisprudence
on
marriage
equality
(as
well
as
the
Court’s
holdings
on
consensual
sexual
contact
and
contraception).
So,
sure,
as
Alito
notes,
the
Dobbs
decision
didn’t
overrule
Obergefell.
But
that
doesn’t
mean
Alito
and
as
many
“working
judicial
originalists”
as
he
can
muster
won’t
overturn
marriage
equality
as
soon
as
they’re
able.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
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@Kathryn1 or
Mastodon
@[email protected].