Lest the Heavens Fall

So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, by Samuel Alito (Basic Liberty, 320 pp., $32)

In his new book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, Justice Samuel Alito writes of constitutional interpretation that “[t]he theory to which I subscribe is originalism, that is, the theory that constitutional provisions should be understood to mean what the public would have taken them to mean when they were adopted.” He explains that “[t]rue originalism sets out the proper method of constitutional interpretation,” and he describes “ways in which originalist judges can go astray” because he “want[s] to keep originalist jurisprudence on course.”

Later in the book, Alito observes that “the most prominent proponents of constitutional originalism, like Judge [Robert] Bork and Justice [Antonin] Scalia, argued emphatically that natural law should play no role in constitutional interpretation.” He notes that “natural law is no longer widely understood” and as a result the concept has “been used loosely by others who favor what they understand the term to mean,” including a legal vision that “departs radically from the classical and Catholic tradition.” And he warns that “proponents of common good constitutionalism should take into account what the adoption of their theory would mean in practice.”

Given these express statements, it’s strange that the book has been interpreted as an attack on originalism and a stalking horse for natural law theories. “Alito’s nominal adherence to originalism,” according to Harvard Law professor Jack Goldsmith, treats the theory as a “zombie creed” that “seeks to accommodate” not merely common good constitutionalism but a “conception of law that is unshackled by restraint and focused solely on conservative victory.”

Part of the misunderstanding might be willful, given the politics of the moment. But the book might also have met with skepticism because Alito has generally avoided theoretical labels and criticized overly academic approaches to judging. As I have described it elsewhere, Alito’s approach reflects “resistance to resolving cases by reference to high-level abstractions” and “humility about a judge’s ability to describe lived experience in terms of singular purposes or principles.” He insists on taking full account of the circumstances of each case rather than resorting to the oversimplification that would allow the easy application of an elegant theory.

Alito emphasizes that he is not an academic originalist but a “‘working judicial originalist’—that is, a judge who strives to achieve originalist aims while working within the framework of our judicial system,” which he describes as practical rather than theoretical work. His discussion of originalism should be understood in that light. Indeed, the misunderstanding of his argument reflects the degree to which commentators assume that a judge’s duty is to adhere to an abstract theory, such that they regard skepticism of a totalizing judicial theory—and an insistence on the need for judgment—as an attack on neutral decision-making.

The reaction shows that Alito has diagnosed a real problem. His argument is that an originalism fixated on theoretical sophistication might ignore the necessity of judgment that judicial decision-making requires. “Judging is practical work with realworld consequences,” he writes, “and it is done under conditions that may militate against scholarly purity.”

Recognizing “the need for judges to exercise judgment,” as Alito does, might seem like an easy aphorism. But the contribution of his lead essay on “Originalist Judging” is to identify particular ways in which the impulse to scholarly purity among originalists might lead to poor decision-making. And the response to the essay suggests that the need for judgment is not uncontroversial. I want to focus here on the purported pitfall of scholarly purity that has caused the most controversy: Alito’s contention that “insecure originalists fear saying anything about the desirability of originalist results.”

One learns from a later essay in the book that Alito keeps in his office a photo of himself with the judge for whom he clerked on the Third Circuit, Leonard Garth, sitting on the bench of a trial courtroom in the federal courthouse in Newark. The bench in that courtroom is “emblazoned,” he notes, with the Latin maxim fiat justitia ruat caelum (“let justice be done though the heavens fall”).

The maxim has been subject to different interpretations, including that the dictates of justice are indifferent to consequences or, correspondingly, that judges should ignore the consequences of their rulings. That conception of justice has been subject to criticism. The philosopher David Hume said it was “a preposterous idea.” Because “the obligation to justice is founded entirely on the interests of society,” it is a “false” notion of justice that would see the universe destroyed for the sake of an abstraction. The economist Ludwig von Mises famously said that the correct attitude for governing human action is not fiat justitia pereat mundus but fiat justitia ne pereat mundus. That is, not “let justice be done though the world perish” but “let justice be done lest the world perish.” His idea was that justice properly aims at the preservation of society and the avoidance of its destruction.

Alito sides with the skeptics of abstract justice when he associates his own approach with Edmund Burke. “Burke famously warned against the siren song of abstract theory,” he writes, and “Burkean principles counsel judges to have a general respect for (1) the complexity of human society, (2) the limitations of the individual human mind, and (3) the presumption that considerable wisdom has accumulated in longstanding practices and institutions that have taken hold in society at large.” Burke himself wrote that “[n]othing universal can be rationally affirmed on any moral or any political subject” because “[p]ure metaphysical abstraction does not belong to these matters.” Burke emphasized that the particular circumstances “are what render every civil and political scheme beneficial or noxious to mankind.”

A prudent judge in the Burkean tradition, then, would not be so overly confident in the abstract rightness of his conclusions that he would not hesitate before ordering the destruction of the cosmos. And Alito emphasizes the need for humility. While “we must follow the law wherever it leads,” he writes, “[w]hen originalist analysis seems at first to lead to a result that makes no sense, sound originalist judges should go back and check their work.” A nonsensical result is an indication that something is wrong with the judge rather than with the law. That is a restrained and a conservative, in the anti-ideological sense, view of the judge.

If the ruat caelum maxim were only about the dogmatic pursuit of abstract justice, it might sit uneasily in Alito’s chambers and in his book. But the maxim has assumed another meaning in the Anglo-American legal tradition, in which it has stood for judicial courage. In Rex v. Wilkes, the King’s Bench considered charges of seditious libel against a dissident member of Parliament whom the House of Commons had expelled. In announcing the judgment, Lord Mansfield recounted that “numerous crowds” had gathered around Westminster Hall, causing “tumults” that “shamefully insulted all order and government,” and “[a]udacious addresses in print” sought to dictate the judgment based on “[r]easons of policy” such as “danger to the kingdom by commotions.” Lord Mansfield said that he would “take the opportunity of this great and respectable audience, to let the whole world know that all such attempts are vain.” He declared that “[w]e must not regard political consequences, how formidable soever they might be; if rebellion was the certain consequence, we are bound to say ‘Fiat justitia, ruat coelum.’”

Alito understands the maxim in this sense of standing up to the mob—of applying the law irrespective of the consequences, not for society, but for the judge. “[G]ood judging sometimes really does take guts,” he writes. “We can’t give in to the temptation to do the popular thing, and we cannot succumb to the rationalizations that may come to mind. Giving in is not consistent with the oath we all take when we are appointed. And in the long run, putting the law aside for the purpose of winning popular approval is doomed to fail, because if the public detects what we are doing—and eventually it will—we will lose the very respect we are seeking.” In this way, Alito lays out an approach to judging that reflects humility about one’s own conclusions but also independence from popular sentiment.

This brings us back to those “insecure originalists” who “fear saying anything about the desirability of originalist results.” Alito writes that “unless originalism is widely viewed as generally producing good results, it is hard to see how it will be able to survive as anything other than a minor academic curiosity.” If this is not about momentary political victories—and it is not—then what does he mean?

Alito observes that many “young originalists” seem to “believe that the theory grew out of a seminar attended by philosophers.” They focus on theoretical precision and are intent on proving that originalism is a neutral interpretive method—and on disproving the charge that the theory simply provides cover for results-oriented decision-making. Such originalists therefore may “welcome occasions when their originalist analysis leads to results they dislike” because that provides evidence of the originalists’ own indifference to results. This impulse leads to its own results-oriented bias, however, as the young originalists begin “subconsciously setting a higher bar for legal arguments that yield outcomes they find desirable as a policy matter.”

Alito’s warning against that bias fits within his larger argument that judges should not get lost in abstract theory at the expense of the realities of human life. The notion that originalism went directly from the seminar room to the courtroom, he explains, is “a false picture.” As an historical matter, originalism gained acceptance in the legal culture and among the public based on normative arguments about the undesirability of the living constitutionalism of the Warren Court and the relative attractiveness of a constitutionalism based on original meaning. The theoreticians of originalism might not be engaged in that normative and political debate, concerned as they are with working out its theoretical premises, but a disconnect between the theory and the reasons for its acceptance might undermine it in the long run.

Originalism is a part of our law because social actors recognize it as a criterion of legal validity. But “if originalism becomes unmoored or conceptually disconnected from the normative justifications that contributed to its rise, then people might eventually find the methodology less appealing,” Elias Neibart has written. “And if it loses widespread acceptance, it will no longer be our law.”

So when Alito writes that originalism must be viewed as generally producing good results, he is making the often-overlooked observation that originalism has attained its legal status because it is seen as delivering results—including but not limited to stability, predictability, and due deference to democratic decision-making—that are preferable to its alternatives.

It does not undermine constitutionalism to acknowledge that a constitutional theory, like a constitution itself, must be understood to be socially beneficial. “The purpose of constitutional guarantees,” Scalia once observed, “is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable.” Alito now warns that the theoretical sophisticates who purport to apply a method that adheres to original meaning—but who delight in generating unexpected changes or counterintuitive results—might undermine the appeal of that method and jeopardize its legal status.

A conscientious judge might be bound by oath to apply even an undesirable Constitution. But it should not be surprising that people would question the desirability of such faithful adherence. Alito argues that originalism “furthers the common good” better than its alternatives because “we have a good Constitution.” Contrary to those critics who think any mention of the common good is a dog whistle, this is a defense of originalism against those who argue it is undesirable. And indifference to the common good would be a surrender. A later chapter in the book, in which Alito defends premises of the Constitution such as the separation of powers, avoidance of factionalism, and freedom of speech, concerns “results” but is not tied to immediate political results.

In So Ordered, Justice Alito discusses judicial decision-making not “from an academic perspective” but based on his “thirty-five years of hands-on experience as a sitting member of the federal judiciary.” And it turns out to be useful for the seminars to hear more from the courts.