Steven G. Calabresi & Todd W. Shaw
87 Geo. Wash. L. Rev. 507
Justice Samuel Alito has sat on the judicial bench for nearly 30 years and has authored more than 250 Supreme Court opinions, nearly 40% of those for a majority of the Court.1 But his jurisprudence has yet to be systematically described. Although superficial accounts have been offered, they diverge widely. To some commentators, for example, Justice Alito is a methodological pluralist or “newer textualist,” though to others he is an originalist of the same or similar stripe as Justice Antonin Scalia. Yet Justice Alito’s jurisprudence cannot so neatly be identified with these or other competing descriptions.
This Article is the first systematic account in any legal publication of Justice Alito’s jurisprudence. It analyzes nearly three dozen of Justice Alito’s opinions to demonstrate that three themes characterize his jurisprudence: (1) a fact-oriented approach in which fact is distinct from doctrine; (2) an implementation of “inclusive originalism,” under which a judge may evaluate precedent, policy, or practice, but only if the original meaning of the constitutional text incorporates such modalities; and (3) a strong presumption in favor of precedent and historical practice.
Justice Alito’s jurisprudence is largely consistent with Burkean Conservatism. The three themes of Justice Alito’s jurisprudence follow the two features of Edmund Burke’s philosophical method of approaching political questions. First, Justice Alito’s distinction between fact and doctrine acknowledges both the Burkean rejection of abstract theory and the necessity of placing factual circumstances before principle and theory. Second, Justice Alito’s deference to precedent and historical practice squares with the Burkean tradition of relying on tradition and prescriptive wisdom.
