Long Overshadowed Samuel Alito Gets His Moment in the Spotlight

Samuel Alito is having a moment.

Alito, the taciturn conservative justice who turned 76 this month, has always been admired by conservatives yet overshadowed in star power by fellow conservative Justices Antonin Scalia and Clarence Thomas.

But as he nears the end of his 20th term on the court, his stock has never been higher.

He was the subject of a full day Federalist Society fete in March and two biographies publishing this month. Alito’s first book, which promises an examination of his originalist legal philosophy and views on the court’s role in US culture wars, is set to publish in October. The publication date, set for when the court will begin its next term, has fueled speculation about whether he plans to retire, driving further discussion about his legacy.

“It’s entirely appropriate that a great deal of attention would be looking at his impact on the court this year,” said Gregg Nunziata, a former chief counsel for Senate Republicans. “Alito’s nomination and confirmation constituted a real turning point and set the foundation for the conservative court that we know today.”

The image of Alito as an iconoclast, defending a fading era, is a running theme in both Alito books publishing this month. In “Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution,” author Mollie Hemingway, editor-in-chief of the conservative website The Federalist, paints Alito as an understated, heroic figure who pushed back against liberal excess.

While he long operated in the shadows of Scalia, who died in 2016, and Thomas—“fan favorites” of most lawyers at the conservative Federalist Society, as Hemingway writes—Alito cut a lower public profile for most of his tenure, even as he steadily built a track record of conservative wins.

“So very little had been written about him,” Hemingway said in email, adding that while Thomas and Alito both eschew attention, “Alito’s strategy is more incremental.”

Alito’s ascent is also charted in Politico editor Peter Canellos’ new book, “Revenge for the Sixties: Sam Alito and the Triumph of the Conservative Legal Movement,” which traces his path from Trenton, New Jersey, to the Supreme Court alongside the rise of the conservative legal movement he helped shape.

Canellos said Alito’s fixed position on the right-most flank of a court that’s shifted in his direction stems from lessons about American exceptionalism—"this is the land of opportunity, pull yourself by your bootstraps, those sort of messages"—he learned as the child of Italian immigrants in the post-war era.

“So many first- and second- and third-generation Americans who grew up with those messages were very, very upset by the social changes of the 60s—which felt very personal and threatening—and the decisions by the Warren Court,” Canellos said.

The Alito Court

Nothing has put a spotlight on Alito more than his authorship of the court’s 2022 opinion overturning Roe v. Wade, a decision, he wrote, which had “embittered our political culture for a half century.” The 5-4 opinion in Dobbs v. Jackson Women’s Health Organization marked a generational victory for conservatives while dramatically escalating attacks on the court and its author. In response, Alito began speaking out more.

“At a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself,” Alito told the Wall Street Journalin 2023.

Long-time associates have noticed a change in Alito, who they considered a “shy, polite, reserved person” when he joined the court at 55, Canellos said.

“A lot of those same people 20 years later don’t see him that way now,” Canellos said. “He was supposed to be the quiet man at the table, taking in all the arguments, really thinking through rigorously, and I think people see him now coming off sharper and more opinionated.”

Alito’s embrace of originalism, the legal philosophy championed by Scalia and Thomas that seeks to interpret laws based on he original public meaning at the time of their adoption and eschews the idea of an evolving constitution, has also drawn scrutiny. Where Thomas is known for his uncompromising positions, it’s Alito’s more flexible approach—he’s called himself a “practical originalist”—that often wins out.

“The Alito approach has become closer to the default approach,” said Harvard Law School professor Richard Re, calling it “less formalist, originalist, and interested in grand theory,” than Scalia’s.

The title of Alito’s forthcoming book, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country,” has generated both interest and questions in the legal community about how he defines originalism.

“It’s a big deal, for those of us who are originalists,” said Randy Barnett, a Georgetown University law professor and Federalist Society leader. The arc of Alito’s career is one that saw the “decline of judicial restraint and ascendency of originalism,” he added.

That arc coincided with President Donald Trump’s nomination of three justices in his first term, which solidified the court’s conservative tilt while producing a wide chasm in public opinion about the institution. Alito has been a reliable vote for Trump in many battles over executive power.

“The differing takes on Alito are less about him than the court’s embrace of a conservative agenda,” said Kevin McMahon, a Trinity College political science professor who’s authored books on the intersection of the court and politics.

At a recent Federalist Society event marking Alito’s 20th year on the court, Catholic Law School professor and former Alito clerk Joel Alicea lauded him as “the premiere jurist on the court at doing what we might call ‘second-best originalism. Alicea added that Alito uses “using non-originalist doctrines, non-originalist precedents that move the law in an originalist direction.”

One former clerk declined to discuss Alito when contacted by Bloomberg Law, except to say that he’s “a national treasure, the greatest justice in the history of American jurisprudence.”

Work to Do

While conjecture intensifies about a possible retirement at the end of the term, Alito has given no public indication he plans to leave.

Even after his Dobbs opinion and a string of other landmark decisions, Canellos said Alito doesn’t seem done, particularly when it comes to promoting the free exercise of religion. Alito has often spoken publicly about how he feels traditional religious beliefs are under siege.

During a 2022 speech in Rome, Alito lamented a “turn away from religion” and said more needed to be done to promote it as a boon for society.

“The problem that looms is not just ignorance to religion, it’s not just indifference to religion,” Alito said. “There’s also growing hostility to religion.”

“He really believes in it strongly, and even a conservative justice who replaces him might not feel as strongly,” Canellos said.

The justices may soon take up a case out of Colorado that asks whether the court should overturn its 30-year-old precedent in Employment Division v. Smith, a decision authored by Scalia allowing incidental infringement of religious freedoms by neutral, generally applicable laws.

Alito has urged the court for years to revisit Smith. Recent writings by fellow conservatives suggest he may now have the votes to do so.

“If you’re thinking of something that might motivate Alito to stay on longer because only he can do it,” Canellos said, “that might be it.”