Aaron Ward Esq.
@aaronwardesq.bsky.social
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@AaronWardEsq on SM platforms. Clippy Protester. Fully vaxxed/cv-19 free, Liberal, Attorney, Patriot, American, Civil Rights/Human Rights Enthusiast, Egalitarian, Industrialist. Fight for Justice. you're➡️your
![“Why, then, have some commentators questioned whether Justice Alito is an originalist? One reason is that his opinions tend to rely on non-originalist arguments, such as those employing judicially created tests.[18] But this deviation from arguments based on text or history is simply the result of the fact that, as Justice Alito acknowledges, he “almost always follow[s] past decisions,”[19] and most of current Supreme Court doctrine is non-originalist in at least some respect. Indeed, in many instances, Justice Alito’s use of non-originalist arguments makes him no different from other originalists. For example, although scholars sometimes cite Justice Alito’s solo dissenting opinion in Snyder v. Phelps[20] as demonstrating his willingness to depart from originalism and bring his own moral or political philosophy to bear in deciding cases,[21] both the majority (which included Justices Scalia and Thomas) and the dissent in that case employed the same judicially created tests dictated by precedent. Since current free-speech doctrine has long been unmoored from the original meaning of the Free Speech Clause,[22] none of the justices relied on the original meaning in Snyder. Justice Alito’s Snyder dissent thus sheds little light on whether he is an originalist.
More relevant are those cases in which one or more members of the Court would have decided a case on originalist grounds, yet Justice Alito declined to do so. Justices Thomas and Alito frequently diverge in this way, but as noted above, that has not been true in cases of first impression, when there is no precedent on point. Instead, they have differed as to whether to apply the original meaning when there is precedent on point, and that implicates issues of stare decisis that are related to—but distinct from—the question of whether a jurist is an originalist.
It is widely accepted among originalist scholars and jurists alike that some version of stare decisis is compatible with originalism. While a few scholar…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:b7nwyonilwymqnwhomv6yfvy/bafkreif5qkmdusjd3syk6g6oru2fatcg4imykbz5nguvdigclac447mucy)
