This post was originally published on here
2026 will see a bumper crop of books about Justice Samuel Alito. Three are planned: Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution by Mollie Hemingway; Revenge for the Sixties: Sam Alito and the Triumph of the Conservative Legal Movement by Peter S. Canellos; and So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country by Justice Alito himself.
I’ve obtained advanced copies of two of the books, Alito and Revenge for the Sixties. One is from the conservative side and one from the liberal side, but both are by fair journalists. Both are worth reading.
The better volume is Mollie Hemingway’s Alito. Hemingway has already written a book about a Supreme Court Justice, Brett Kavanaugh, so she knows her way around a docket. Hemingway is a graceful writer with an ear for revealing anecdotes and a way to take history and complex legal theories and make them colorful and exciting. Hemingway argues that Alito and the other conservative justices have provided a corrective to what had become, since the 1960s, an activist Supreme Court. Canellos, more liberal, believes that Alito, fearful of a changing world, wants to go back to the 1950s.
Both books treat the 1973 decision Roe v. Wade, legalizing abortion, as a seismic event in America’s judicial history. In 2022’s Dobbs vs Jackson Women’s Health Organization, the court, in an order written by Justice Alito, overturned Roe. Hemingway argues that Dobbs was not a radical move but a corrective to an unconstitutional decision. For Canellos, it was a way to push back on the modern world. However, Canellos, the author of The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, mostly presents the conservative side fairly. He’s not an activist.
Both Alito and Revenge for the Sixties chart the path of Alito from the Italian neighborhood or Mercerville, outside Trenton, New Jersey, where he was born in 1950 and grew up as a student of noted brilliance, to the radical upheavals he saw at Princeton in the late 1960s and Yale Law School in the 1970s, finally finding an ideological home in the Reagan 1980s at the conservative Federalist Society.
At his confirmation hearing in 2006, Alito recalled his experience witnessing the radicalism of the 1960s and 70s: “I saw some very smart people and very privileged people behaving irresponsibly, and I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.” Alito was in the ROTC and always remembered the awful treatment he got on campus at the hands of radicals. Both Hemingway and Canellos use this same quote, and even the more liberal Canellos concedes that the justice has a point.
Alito found a home in the Federalist Society and the conservative legal movement of the 1980s. “For Alito, the Washington of the early 1980s was a perfect antidote to years spent in the wilderness as a conservative on campus,” Canellos writes. “For once, he could function as a member of the majority. He could put forward frankly conservative positions and have them validated by colleagues.” He worked for the Department of Justice and rose through the ranks to SCOTUS.
Hemingway expertly describes Alito’s jurisprudence as, yes, originalism, meaning sticking to the plain meaning of what the Founding Fathers and Congress wrote into law, but not purely originalism. “Alito rejects a ‘hyper-literalist’ approach to originalism in favor of natural law arguments that more closely comport with outcomes ordinary citizens might want,” Hemingway writes.
She goes on: “While efforts to understand the philosophy behind Alito’s jurisprudence can be revealing, in some respects his skills are unique to him. Perhaps the most serious criticism of Alito’s practical originalism is, in a way, a tribute to Alito: It requires a justice with the humility to stay focused on the specific facts of a case and remain appropriately skeptical of comfortable theories of textual interpretation. And when a question is legally indeterminate and best resolved by applying tradition or natural law, the justice’s decision must be both a convincing legal argument and agreeable to the American public who must live with it. Otherwise, he risks becoming another celebrity justice, a peacock on the bench preening for an audience that already agrees with him. In other words, practical originalism requires a wise and even-tempered judge. While there is much to be learned from Alito’s carefully argued opinions, it is his character that makes him an exceptional jurist.”
THE GREAT BRITISH HOMESCHOOLING CRACKDOWN
Alito is seen by both Hemingway and Canellos as a brilliant man. He’s also one who, despite his sometimes stoic outlook, has a good, if extremely dry, sense of humor. Alito once asked his clerks, “What is a rapper?” Only later did they realize he was kidding.
