Samuel Alito: Populist
25 Pages Posted: 13 Mar 2017
Date Written: March 10, 2017
This Essay considers several high-profile opinions written by Justice Alito, mostly separate concurrences or dissents, which reflect a style of rhetoric and reasoning fairly describable as “populist.” That term attempts to capture the sense from these opinions that constitutional (or, in one example, statutory) meaning can be revealed by the moral outrage generated by the facts of the case. For example, Justice Alito’s partial concurrence in Brown v. Entertainment Merchants expressed outrage at the violence and anti-social themes reflected in the video games at issue in that First Amendment case. More importantly, that outrage seems to have partially fueled his skepticism about the majority’s doctrinal analysis protecting that speech.
This Essay examines a number of such examples. It then discusses what such an approach to constitutional law might mean, both substantively and in terms of its perception by the American public. It also notes that Justice Sonia Sotomayor’s increasingly distinctive voice sometimes reflects a similar rhetorical style, albeit from a very different political perspective. This insight suggests that the dialogue among the justices may soon feature this populist style, with important implications for constitutional meaning, methodology, and public perceptions.
Suggested Citation: Suggested Citation