Advisory Opinions - What Is Originalism? | Interview: Sherif Girgis

Episode Date: October 6, 2026

The new Supreme Court term has officially started, Sarah Isgur has returned from Down Under, and Sherif Girgis is taking a job at Harvard Law School. The vibes on today’s podcast are immaculate as Sarah and David discuss the long conference before Girgis joins them to discuss Justice Samuel Alito’s new book and his recusal from the biggest case of the term.  The Agenda: –42 pages of cert denials –Long conference overview –So Ordered: An Originalist's View of the Constitution, the Court, and Our Country –Justice Alito’s op-ed in the Wall Street Journal –The off-ramps of originalism –Behind the scenes in Alito’s chambers Show notes: –Justice Alito’s CBS News interview with Jan Crawford Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. Happy OT 2026, everyone. The new term of the Supreme Court has officially started. We even had our first order.

If you go to the Supreme Court's website, it's so fresh. There's just one little order for OT26, and it was 42 pages of cert denials. We'll highlight some of the best, I mean, the saddest cert denials. as well as the CERT grants that we got. And we have got Professor Sharif Gyrgyz with us to break down all things. Justice Samuel Alito as his new book comes out and the news that had nothing to do with the book. Let's go. Okay, David, right off the bat, we did have the orders from the long conference.

I just wanted to highlight some of the cases that did not get granted. Number one, you're going to be sad about this one. This was a challenge to prune yard. that First Amendment case from the 1980s that you hate about whether a mall proprietor can refuse to allow someone to pamphlet on their private property if they don't agree with the message. So this is California's rule requiring shopping centers to permit expressive activity denied. The Let's Go Brandon case. Denfired. Sarah, don't say this.

Don't tell me this. Why are you the bear? You come back from being gone and you just dump bad news on me. Whether the court should overrule Jones versus United States and hold that the Fourth Amendment requires a witness with firsthand knowledge to swear an oath before a warrant can issue, denied. I will tell you the one piece of good news is that the Maryland case about race-neutral admissions criteria that were made for non-race-neutral reasons

hasn't been decided yet. That is up for conference. It's first conference next week. I would assume, even if it gets denied, that it will get held over for a couple conferences. So we're probably like a month away from hearing about that one. So that's the only good news is that you didn't get everything you wanted denied, just the vast majority. But we do have some cert grants, David, that I thought I would run through with you. Obviously, we'll talk about them more as they actually get argued.

one is on illegal aliens who are detained in the interior of the United States and whether they are entitled to bond. In particular, the Justice Department had asked for one case like this to be granted. It involved like 11 people, sort of a varying legal stuff. Instead, the Supreme Court granted a specific person's case. He had been unlawfully in the interior of the United States since 2004 or 2005 and was detained, held without bond. And so that is one of the cases that the Supreme Court will hear. But David, this is the one I thought you'd be really into. Missionaries of St. John the Baptist versus Frederick.

This is a Raluppa case. I mean, pretty exciting stuff, right? So this is the idea that Congress enacted Rulupa in two. to expand religious freedom protections for prisoners and religious organizations or individuals challenging zoning laws. Here, the church acquired some property next door to it, wanted to build a shrine to the Virgin Mary. And long story short, the zoning board and the Kentucky Supreme Court was like, no, thank you. You can build a smaller version of your shrine on a different part of your property.

The property that you bought was for residential use, and you can't just, like build a shrine on residential use because a neighbor complained and thought it would cause traffic. David, this is a really interesting case to me because on the one hand, zoning laws don't mean much if you can say something's for residential zoning unless you're a church. Right. On the other hand, as the petition pointed out, there were exceptions for golf courses, but there weren't exceptions for churches, but there were, the churches weren't treated, like there were other places treated like the churches. So, So exactly what does RELUPA mean?

How much of a thumb on the scale? Is it... Both of those cases, I think, are super interesting. Because the immigration detention case involves really two statutes, one that very explicitly, if you are brought into, if you're coming into seeking admission to the country, you're going to need, it's going to allow detention, and it doesn't say anything about bond.

And then there's another provision that talks about a person who's being detained, being able to get bond. And these are very similarly drafted statutory provisions have generally been interpreted to allow bond if you've been captured in the interior. But if you're walking into the country, there isn't bond. And so, you know, it'll be interesting to see how broadly this goes, but the court really doesn't look like they're going to be

answering the bigger issue, which is how long can you be detained when you are, have not been even, you're being detained before, you know, potential expulsion from the country, but you haven't been accused of a crime. You're not being adjudicated for criminal misconduct and yet you're detained anyway. I don't think that we're going to really get into that, but we're going to get into the much more granular issue. That's interesting. And then Sarah, I'm with you on the Raluppa case. One day I would love to see a, a, a person, perfect case teed up, where there have been no sort of exceptions granted and no sort of quirks, where you really are looking at, okay, we've been really rigorous all the time that

residential zoning is for residential zoning. And you've come in and you want the exception for the religious use. And that's it, as opposed to some of the more, you know, it always seems to be more messy than that. And you can always sort of punt the conflict, punt resolving the conflict, because you can point to an inconsistency, and the inconsistency resolves the case, not the inherent conflict, if that makes sense. Totally. We also have a divorce case that was granted.

Which we've never discussed divorce cases on this podcast. Nor will we again. But David, there was a case from the interim docket that was granted cert, actually. So the parties are directed to brief and argue the following questions. one, whether the district court had jurisdiction. Okay.

Two, whether the district court had authority to enter declaratory relief, i.e., are they ignoring the CASA decision? Like we said, yeah, it shut the front door with nationwide injunctions, but like the back doors open, the window, the screen's flapping. And even then, it does appear that some district courts are like, yeah, but the front door was so convenient. Okay, and number three, whether the government's guidance on third country removals is unlawful under statute,

the due process clause, another, the Convention Against Torture, and it's implementing regulations. And four, and this one's interesting, David, such other questions that the government determines are appropriate for the proper disposition of this case. So this is a third party removal case, as in you generally in these cases, I will generalize David. Someone has been convicted of a crime, usually a pretty gross one. And the country that they were here illegally from is like, no, we don't want the child rapist murderer coming back to our country. We can't force that country to take this person back. We can't just like air drop them with a parachute into the country. And if that country won't take them back, we're stuck with them. And so then

you look for other countries, not the country the person came from that are maybe willing to do it for money, for instance, or maybe they're getting foreign aid from the United States. These generally are not countries that you want to live in. And so the question is about the administration's third country, third party, third country removal policies. The clerk is directed to establish a briefing schedule that will allow the case to be argued in the December 2026 argument session. Justices Sotomayor, Kagan, and Jackson would deny the application for a stay. So in the meantime, the third party country removal policy goes back into effect. But David, I mean, lots of people were talking about, like, we haven't really seen that for such other questions that the government

determines are appropriate for the proper disposition of the case. This is an interim docket special, right? Because this didn't come up through the cert process and it wasn't fully briefed, the court is basically like, okay, we're going to set this for oral argument, even though it's on the interim docket. That's what all of you people want, right? But we don't even even quite know all the QPs we might need because this hasn't been fully briefed. So it'll be interesting to see how this goes. It feels like a bit of an experiment coming off of the emergency docket part of the emergency docket in that we've got four QPs. They're all big, right? Whether the district court had jurisdiction, whether CASA is being followed or whether

this was a nationwide injunction that they said they couldn't do, whether the policy is unlawful, and also anything else that we didn't think of that might be important because there's been so many of these cases that keep coming up on the interim docket and they are sick of it. Yeah. So big one. I'm so interested in how this works out. You know, Ellie and I talked about this just barely brushed up against it because the order was very fresh. And we were both somewhat stumped by Quake QP4. And I think you gave the best explanation for it that, well, this is also preliminary. Maybe there's something we missed.

It's not necessarily saying whatever the government wants to bring before us. It's up to the court to decide, is this, you know, necessary for the disposition of the case? But it implicates nationwide injunctions. It implicates the class-wide relief workaround for nationwide injunctions by bringing up treaties. it implicates the impact of treaty law on domestic American actions. I mean, this is a big one. And I feel like we're kind of sleeping. I feel like in the public discussion, people are kind of sleeping on it.

But the more I look at it, the bigger I think this is. It's a big case. I do not envy the lawyers who will need to prepare for this oral argument because they are basically going to prepare for six different cases. Each one of those QPs could be its own case that you would have. have to prepare oral argument for. Number four has at least one or two components. So I'm going to say preparing for this case for oral argument is preparing for six cases for oral argument, but it's worse because if they actually do get to all six issues, you've got to do them really quickly. And so

you've got to be better than even if you had the full hour on any one of these issues. All right, David, shall we introduce our guest for today, Professor Sharif Gyrgyz of Notre Dame Law School. He clerked for Judge Tom Griffith on the D.C. Circuit, who is a friend of the pod and was on quite recently. And then he clerked for Justice Sam Alito. He is a friend of the pod, but we really need someone to be defense counsel for Justice Alito. As his new book comes out so ordered, he has given long interviews, but more importantly, he wrote this op-ed in the Wall Street Journal about originalism and about his version of originalism, and you and I need to go through it, I mean, nearly line by line. Totally. Totally. And we're going to agree with some stuff. We're going to disagree with

some stuff, but we're going to be so happy he wrote it because it really is, he made points that are very much worth chewing on. And I'm very excited for this conversation. All right. Let's get him on here. Joining us on the pod now is Harvard Law Professor and frequent A.O. guest, Professor Sharif Gyrgyz, Thank you for joining us. Thanks for having me. I am Notre Dame law professor until January 1st. Oh, okay, okay. Sorry.

Credit word due. Still in South Bend for the football season. And then over to Cambridge. Very strategic choice there, Sharif. Very strategic. No, my priorities. Okay. We have you here to talk about all things, Justice Samuel Alito,

including all the things that branch off of having a Justice Samuel Alito. but let's start where we're going to start, which is the sort of hot news. On the one hand, I thought he'd be in the news because he has a new book coming out, so ordered. I don't know if you've had a chance to read it. It's a collection of speeches and essays that Justice Alito has written over the last many years, trying to illuminate, I think, his judicial philosophy. I think it does a pretty good job of that. Although I've got to say, this Wall Street Journal op-ed that he published with the book,

maybe doesn't even better job than the book itself. I mean, it's great. And I want to get to that. But that is not the news hook of Justice Alito this week. It was his recusal off of the Suncor case. This case is being argued as we record this podcast. I listen to the first 20 minutes of it. We will cover it in depth on the next episode. And in our preview, David, I said that I thought this was by far the biggest case of the term. So to have a justice recuse off of this case is a big deal, no matter what. Remember with St. Isidore, the case about whether Catholic charter schools could be charter schools, whether they are more like private schools or more like public schools. Justice Barrett recused off that case, it divided four-four. That means the lower court decision was affirmed. That could definitely

happen in Suncor. But what's crazy about it to me, Professor, is that we'd already heard from Justice Alito. He already said he wasn't recusing off of this case. And then a week before the case is getting argued, JK, he recuses himself citing, we assume, that his wife owns stock in some energy companies. My understanding is, A, the stock isn't worth that much. B, it was inherently. It was inherited and sort of like the flag issue. It's her stock. He can't make her sell it, but her stock can make him recuse himself off of cases. So with that too lengthy intro, what do you make of this? Do you think it will change the outcome of this case? What happens now? Bluh. It's a great question. I was very surprised. I was surprised partly because Justice Lito said, I think, in an interview with some

media outlet that he checked internally with whatever it was general counsel's office or the ethics person at the court and they said that the recusal wasn't required and it's a commonplace among the justices and maybe justice alito has said this also at some point that if recusal isn't required it's probably a bad idea because you don't want to there's so much room for gamesmanship and stuff when it comes to the justices where they can't be replaced and where it could make a out of the difference to the outcome for the whole country so i was surprised that he did. And the best sense I can make of it is that the explanation he gave in that interview is correct, which is that, or is honest, which is that he, the more he read into the case,

the more he thought, you know, on balance, he really should. I think you're right about the actual cause. It's the stocks and the energy companies. But I can't think of another incentive you would have to recuse unless you really just thought in conscience that you had to, under circumstances like these. Or if the facts change to some degree between initial non-recusal and recusal. That's true. That's true. He might have acquired new stocks, though.

I guess if it's the inherited stocks, that that's a constant set or a shrinking set. There's been a bunch of speculation, you know, did the other justices pressure him to do it because of it's a bad look? Did the outside pressure make any difference? I mean, I think everyone on this podcast has some sense of who Justice Alito is. it would seem to me that any effort to pressure him to recuse would backfire. So if anything, even from his colleagues, if you wanted him to recuse himself off this case, the thing you would do is not mention it at all. Right. I don't think he would give in to pressure. It's not his thing. But also,

I think it would be unusual for the justices to pressure each other on something like this. It feels like the kind of thing that's sort of, you know, it's a truth. You don't want to be pressured by others on it. it's a very difficult set of issues. And so you wouldn't pressure others. That's my guess. So I really don't see any other explanation except the one that he gave. Okay. Let's get into Justice Alito's judicial philosophy, as he explained it in this Wall Street

Journal op-ed, as well as this long-ranging interview he did with Jan Crawford over at CBS, where he touched on everything. I mean, it was a multi-hour interview, all the things. I don't think there was anything really that was. left off, but starting with the Wall Street Journal, I will read out loud. How should a judge interpret the Constitution? I subscribe to the theory of originalism. The constitutional provisions should be understood to mean what the public would have taken them to mean when they were adopted. Years ago, speaking to a group of eager young originalists, I was asked whether I considered myself

a true adherent to their creed. I said I did, adding that I thought of myself as a practical originalist. On reflection, I think a better description might be working judicial originalist, a judge who strives to achieve originalist aims within the framework of our judicial system. I envision an originalist judge driving down a highway. Along the way, he sees seven off-ramps. Six of these are wrong turns, and the seventh places an originalist judge at a crucial crossroads. So maybe we can tick through the six bad off ramps before we get to number seven. Number one is the one I am by far the most interested in and that I want to spend the most time on. I think it is this is where it is, right?

This is the off ramp. It is called insecure originalism. I got problems with this one. So I cannot wait to get started. Reading again. Even though originalism has a strong intellectual, and has one important judicial respect, insecure originalists remain in what Professor Adrian Vermewell has called a, quote, defensive crouch, wary of being charged with, quote,

results-oriented decision-making, they are allergic to any evaluation of results. That is a mistake. No neutral theory will produce a socially desirable result in every case. But unless originalism is widely viewed as generally producing good results, it is hard to see how it can survive as more than an academic curiosity. Professor, it cannot be a coincidence that Adrian Vermeul gets name-checked, right? This is the guy who does common good constitutionalism. So there's two ways to read this. One, Justice Alito is trying to move originalism over to common good constitutionalism, or two, Justice Alito is trying to move common good constitutionalism into originalism, which do you think it is?

That's a good question. So first, let me back up and say, I generally dislike talking about my former bosses because it's like a known fact that clerks hero worship their bosses. So you always sound like a shill. You're either shilling or disloyal. And it's especially bad in this case because I believe the good things I'm going to say. And they won't be believed because I'm a former clerk, but it's out of love for AO that I'm here. So with that

acknowledgment of the awkwardness side. This is a safe space, Sharif, for you. This is a safe space. It's just us and your 100,000 listeners. So first, let me just say that the insecure originals and thing, when you zero in on it, the honest answer to your question is, I don't know. But on the surface of it,

it sounds totally unobjectionable in one way, unless you read something into it or the vibe you get is a different one. So in its own terms, it's just saying, just like you shouldn't have a thumb on the scale in favor, of outcomes you like. You also shouldn't have a thumb on the scale against outcomes that you think would be good. You should just follow the law. And then he says later in the paragraph,

sometimes following the law leads you to bad outcome. And when it does, that's your obligation. But you should think twice when that happens because after all, the law came from people who were trying to do good stuff. So it might make you a more reliable originalist to at least check your work, as he says, when the outcome looks crazy. I think there will be some originists who say, no, I want a thumb on the scale against the outcomes that I like because that's the only way to correct for a bias and get to the true legal source. And I can see the argument for both sides. And another way to summarize both of them is just to say, whenever the political stakes are high,

you should proceed more carefully and be careful. I mean, now, that version of the thing is completely anodyne and deflating a little bit. And he might just be saying, look, sometimes in our anxiety about results are. oriented judging, we go too far and subconsciously prefer outcomes we don't like. But I think almost every originalist could agree with the Anodyne version of what I just said. I do think, just going to your point and trying to get spicier, he, I think he does, he clearly, I mean, this is a vibe through the book and through all of his opinions. He clearly thinks that originalism is less determinate than some of the other originalists do.

And that's why he keeps talking about, you know, we need a dose of, we need, discretion is inevitable, and judging is like being an umpire only in the sense that both of us have to exercise discretion and things aren't always bright line. And when you're exercising discretion, that's kind of a vague term, but I think it's a natural thought to say, well, when you're trying to fill gaps or clarify ambiguity, you appeal to common sense, other things equal, unless you think that, there's a reason to think that the authors of the law were going against common sense.

So let me just sort of say my beef with this, which is I feel like, and Sharif, we can just delegate you, you can be Samuel Alito's lawyer. And then we just have dealt with all the conflict. Did I break out my impersonation of him? Oh, yes, immediately. Of course. I can't actually do that.

Off the right. Keep going. Okay. And I'm trying to find it, but not long. ago, Justice Alito was in the Wall Street Journal and he was sort of decrying consequentialism and people who are diving too much into consequences. And here he seems to be kind of reversing course a bit. Like this sentence, or this part, wary of being charged with results-oriented decision-making. They're allergic to any evaluation of results. That is a mistake. I mean, I agree with that. But then no neutral theory will produce a socially desirable result in every case. But unless

originalism is widely viewed as generally producing good results, it is hard to see how it can survive as more than an academic curiosity. Okay, one of these things is not exactly like the other, because unless originalum is seeing widely viewed as being generally producing good results, in whose eyes, in whose eyes, because a lot of the, I think the tribute to originalism has been that because it is very focused on the original public meaning and taking the original public meaning where it goes, that in many ways you're often more likely to perhaps, if you're upholding a statute, if you're upholding a constitutional provision that is contrary to your own view, that's not to say that it's the same thing as socially undesirable against common sense.

It means that it's putting it often more into a realm in which there's a variety of, of views, of which the judges is only one. But once you start to move into that evaluation, and again, I agree that just sort of saying, well, treating the law or treating yourself like I'm law bot 9,000, you just put in a set of facts, you produce a legal analysis and let the chips fall where they may. Let's stipulate nobody wants that. Nobody wants that. However, at the same time, I'm a little bit leery of the idea that if when I'm reading through and I'm doing the work and I'm following the steps, that when I get to a result, that I might not favor say politically or culturally or religiously, that that means I should now check my work because I'm departing from, you know, common good or common sense or something socially desirable, that strikes me as sort of a one way. weigh thumb on the scale that essentially says, I'm double-checking my work in one circumstance when it reaches an outcome that I would not have preferred when we started. And that,

Sharif, as counsel for the defendant in this case, what say you? Good. Okay. So there's a version of the rule that he's giving, the rule of thumb, that only makes sense if it's pegged not to the judge's own personal views of what's desirable, but to like some widespread sense of what's desirable. And that's the version that says, look, you're going to actually more reliably track the original meaning if you check your work when it leads to a crazy outcome. It's kind of like the absurdity canon when you're interpreting a statute. You don't read the statute to impose and a result that's absurd by everybody's lights because it's very unlikely then that the particular people give you the law meant for that. And there's a version of that for constitutional law too. And I think in that version, everything that he says is consistent with everything you just said.

And then there's a different version, which I think maybe he also means, which is, of course, you shouldn't try to get outcomes you personally favor as a judge. But if you are extremely anxious about looking apolitical, you might end up veering in the opposite direction and actually systematically favoring outcomes you personally don't like. And if you find yourself in that predicament, you should correct for that. by asking yourself when you're reaching an outcome you don't like, are you doing this just because you want to prove a point about originalism, or are you doing this because this is where the law leads?

So I like your version of it where basically you're underlining the word insecure. Insecure has very specific connotations. They're negative connotations. It's not a good thing. And to your point, it's this idea of like wanting to prove your critics wrong. I think another version would mean maybe don't hate me originally. Like, look, I did this thing that is against what, you know, you think someone like me would want. But it's like the title, insecure originalism makes perfect sense to me and I'm all on board.

The explanation for insecure originalism sounds a little different to me. And it's that Vermeule name check, which again, I think there's a, I asked you that question in the beginning. You know, is he moving to Vermeul or is he trying to co-opt Vermeel? I'll tell you my own read is that he's trying to co-opt, right? He sees common good constitutionalism as a threat from the right to originalism. And as one of the most conservative right-leaning judges, it is kind of his job to prevent that threat from the flank. And so you co-opt them like an amoeba. Like you're next to them.

And so you absorb them into you rather than have them continuing to like fight and like eat off little pieces of your, you know, amoeba cell. But I think David highlights something that I want to put in slightly different terms. For the same reason that I think, understandably, people criticize someone like the chief justice for his institutionalism, right? This idea that, yeah, yeah, you follow the law, but at the moment you, like, are really in an ambiguous situation, it is okay to think about the court's credibility and legitimacy and the institution as a whole. There are those who say that's just wrong, right? That shouldn't be one of the considerations. I totally understand that criticism. This feels like the same thing, but kind of even weirder and more narrow because it's like,

yeah, yeah, follow the law, follow the law. But, okay, we're in this ambiguous world. If it's ambiguous and it comes out a way that you think is bad for originalism, originalism won't survive unless it has socially desirable outcomes, therefore come up with the socially desirable outcome. Isn't that just institutionalism but for originalism? But for originalism rather than for the court? Yes. And so it depends on exactly what that one line meant, because I remember thinking also that that line feels different from the rest of the two paragraphs. So if, like if we're just trying to protect originalism, right. The most defensible reading of that line is not as a prescription, but as a description. It's like, look, if you get all excited

every time originalism leads to something absurd, then you better realize that that's going to hurt originalism in the long run. You think you're doing something good. for originalism by coming out the other way, but you're already in the mindset of trying to save originalism by proving it has bad outcomes, your own purposes might be undermined by your attack. I like that explanation. The double checking when it comes out in a way that you think is socially bad. And by the way, here, I think we're, I don't want to confuse people. We're using socially to mean in that global sense, right? Like eating children is socially bad. Not in the Not in the popularity sense.

Yeah. Yeah, not in this will make me less popular sense. Yeah, or political or anything else. Just sort of in that very high level term of social desirability. You know, if it leads to a socially non-desirable result, you double check your work. If it's socially desirable, no need to double check. This reminds me so much of my high school math teacher, and I think I've told this story before, I did my homework with my best friend.

I got Ds and Fs, she got A's, and I got really mad, and I went up to the teacher, and was like, I don't understand, we have the same answers. And she said, yeah, but her handwriting is good. And it was basically like when you have the handwriting of a 13-year-old serial killer, you get double-checked. And they're more likely to find your mistakes when they double-check your work than they are when you have pretty, pretty perfect Lady of Shalot handwriting, like my bestie did.

And so she got the A. And like, either you should always double check. And maybe David's point, if it is political. right, but politically good or bad or whatever. Just it's a highly charged case. Maybe you should always check your work. And by the way, I think they are in all of these cases, right? They don't have that many cases.

They're checking everything. But the idea of a prescriptive definition of originalism where you check your work if you don't like the outcome, but if you like the outcome, I'll steam ahead. That seems like a problem too. I agree. I think you should check in any politically charged case for the, symmetric reasons and the mirror image reasons. And I guess this is why I think this paragraph sounds to me like it's directed at a

particular problem that he thinks has arisen locally. Like to my brother and sister, originalist, when you find yourself in this corner, you should find your way out. He's sick of the bragging about the criminal justice cases, basically. Well, and also I also think there's something else going on here. and I don't like the word insecure, and I'll tell you why. And Sharif, we're going to move on to better stuff about Justice Alito quickly, so just to hang with us here as attorney for the defendant,

that there is this kind of popular way of speaking on the right that is sort of along the lines of, if you disagree with me, it's because you lack a certain degree of courage, and that if you really, truly were genuinely conservative, You would go along. You would be one of us. And every time you rule in a way that's different from me or in a way, and I'm not talking about Alito.

This is sort of a broad sort of, and I'm sure you've seen this online, they lacked the courage. They didn't have what it took. And that becomes, it's almost a trope on part of the right at the point, that anyone who disagrees with them is only because of the cocktail parties or they want to be seen. If only Mike Pence had the courage. It's only Mike Pence had the courage, right? And that paragraph, it's not text, well, to extent that insecure, but it's subtext that you guys are doing something where I think you're motivated by the gaze of the other as opposed to being motivated by the words on the page. And I feel like that that's a absolute subtext there.

And it's consistent with another thing. That's how you harmonize this with his other sort of Wall Street Journal statement some time ago about. kind of casting shade on those who worry about consequences. And I wonder if the way you square the circle is the consequences that he was decrying was the negative attention of much of the media or you name it. But this worried me that he's kind of buying that a little bit. And I just reject that as a frame around some of the debates and discussions on the right. It's not about who has more or less courage.

It's about legitimate differences in how we read or interpret the Constitution. Okay. So that's my concern. To answer that, I think we need to get to what he mentioned in the intro, which is that he actually considers himself a working judicial originalist, which kind of contradicts a bunch of what you're saying, David. So we've talked about the first off ramp. Yeah, yeah. Let's go to the second off ramp. Show it to me in black and white originalism.

This is also one of those off ramps you shouldn't take a quarter of. to Justice Alito, I think we're all going to be in very quick agreement here. An originalist judge must always start with the text of the Constitution and be wary about going beyond it. But there are times when an important originalist principle isn't set out explicitly but emerges from the Constitution structure. And what I love about this op-ed, by the way, is for the people like us, he has case citations. So it's not just like vague words. He's like, no, no, no, I'm going to call out my friends. I'm going to call out my opponents, whatever. And so here he cites Prince versus United States.

This is a Scalia opinion from 1997 and his own opinion in Murphy v. National Collegiate Athletic Association. And, by the way, he cites the presidential immunity decision, Trump versus United States, talking about the structural constitution. Again, you can agree or disagree with the outcome of any of those cases, looking at you, David, on immunity. but I think we agree with the underlying premise that just because it's not in the text doesn't mean you can't also look at the structure and sort of design of the Constitution for the outcome of cases

under an originalist framework. Everyone in agreement, say amen. Yeah, yeah, absolutely. I think structural constitutionalism, although we're exaggerating when we say it's not in the text. I mean, the text creates the whole structure. But yeah, yeah, in agreement. Okay, so we're not.

taking that off-ramp, to show it to me in the black and white originalism. Next, next bad, dangerous off-ramp. I carry an originalism. Like the boy in the Greek mythology who flew too close to the sun, originalists sometimes lose sight of what constitutional text would have meant to ordinary people when those provisions were adopted. Instead, that they assume that those provisions embody broad, abstract principles, which justify results that would have astonished the lawmakers who ratify them. What's the case for that one? Ooh, that would be Obergefell.

This is the gay marriage case from 2015. And he says, the due process clause of the 14th Amendment provides that no person may be deprived of, quote, liberty without due process. For an originalist, the question presented in Obergefell was whether the term liberty was understood to include the right to legal recognition of a same-sex marriage. It is impossible to maintain that the general public or lawmakers in 1868 understood the amendment as requiring states to recognize such unions. Yet, that's what the brief argued. Again, I think we actually all totally agree with this, except at what level of abstraction are we talking?

This is the text history and tradition problem that he calls Icarian originalism. makes it sound really great, right? Of course. You can't go too high or else the Constitution is just like do nice things. It will melt your wings. That's right.

Be good to one another. Like, no, obviously, like, that's, the Constitution is more concrete than that. But how concrete? And he mentions, you know, Kylo and some of these Fourth Amendment cases. So he knows the problem. But I felt like this is like,

yeah, I guess we all agree, except when we get to the actual facts of a case, in which case we're back to having to define it. I agree that the devil is all in the details. And the question is basically, okay, I get that too much is too much, but how much is too much? How close to the sun can I get? Yeah.

What level of the stratosphere? And I think he gives two different answers to that, or it's possible to read two different answers to that? So first, he says something that makes it sound like if they didn't expect the application you're about to adopt, then you're doing it wrong. And that's the way he seems to describe the Bergerfeld thing. I don't so much agree with that reading because I think it could be that they anticipated that there would be applications that they didn't anticipate or that they might have agreed with. And the known unknown as the known unknowns. Yeah. God bless to soul.

Bonnie Rumswell. But he, but then he he sides with the thing. pointing to in the second glossly gives, where he says, look, the question is how much discretion to future interpreters do we think the authors of the provision intended to give them? And so it's actually a historical question, what level of generality? Basically, whatever level they all thought they were picking. Now, it's an open question whether that's ever going to give you concrete guidance, because if the text is the main thing we've got and maybe very conflicting, ratifying debates, it's going to be hard to say that they all agreed on a particular level or even hard to report it and hard to use it as a guide. But I like the theory behind that second view.

You know, just sort of going and looking at the op-ed globally, and this goes back to something Sarah said at the beginning. It's like it's showing that that originalism is not math. It's not a hyper-precise process that's going to yield predictable uniform results if everyone is applying this magical thing called originalism. And I think that that is a very, very, very important message to get out into the public. And, Sheree, if you know as well as anybody better than I do, that I don't think that academic originalists or even your most thoughtful judicial originalists would have ever said that originalism is a pure science, that that would be a straw man to say that originalists have been sort of presenting the public that it's a pure science.

But I do think that the impression kind of settled in on maybe a large part of the originalism sympathetic community, that somehow originalism was moving us closer to that model and almost that there is just going to be the proper originalist answer, period, end of discussion in any given case. And I think what Alito is saying here in a global level is there's lots to debate within originalism. And I'm in that debate and making claims in that debate. And I think that's a pretty significant public service at trying to help people understand that, no, it's a school of thought. It is not an outcome generation machine. And I think originals have to be honest that this is a change and a disappointment to the founders,

the modern founders of the movement. So Bork and Scalia, yeah, they recognize there were limits to it. Scalia defended it only as the lesser evil, famously. But they definitely promised that it would tie Judge's hands more than the alternatives. And that was their main selling point for it. It was tying judges hands and tying them not just by anything coin flips or whatever, but by something that feels authoritative, which is the founding. And Justice Barrett has said, well, you know, we shouldn't exaggerate that. Actually, that's not the best argument for originalism. The best argument is just this is how

you interpret this kind of legal instrument to be faithful to the legal instrument. And maybe that's broad discretion and maybe it's narrow and maybe it depends on the provision. But I do think we have to admit that the movement promised something that the method has not been able to fully deliver. And that might not be fatal. I don't think it is fatal, but it's a real realization. And it's not a surprise that this becomes more evident as original moves from the dissenting philosophy to the governing philosophy. That's a kind of point that several people have made now, which is just once you are in charge,

you can't just pick and choose which shots you're going to take. have to have an answer to everything, and sometimes your theory is going to come up short in that effort like any theory would. And so it's not surprising that this becomes more apparent, the more the theory is developed and applied. Let me flip one more thing about that quickly by you. I feel like the originalism debate, as so many things are, was influenced by an abortion distortion. And by that I meant that there just was never a coherent originalist case for Roe. Like, you know, whether it's good originalism, bad originalism, Akela Mar's liberal originalism, whatever,

whatever you wanted to put under the blanket of originalism, that philosophy was going to be fatal to Roe. That was the one thing everyone could be under the banner and realize that this is, Roe cannot survive when originalism exists. However, there's not many situations like that in the law where you have such an aggressive precedent in 1917, You had Justice Ruth Bader Ginsburg

before she was Justice Ruth Bader Ginsburg saying it's breathtaking. So it's so aggressive and it's both aggressive and so culturally and politically important that I feel like originalism just got evaluated through the row lens in a lot of ways.

By both sides. By both sides. And now that we're past row, popularly, nobody knows what originalism needs to do. I think that's totally right. I had reasons to look at Bork and Scalia writings about a year ago. And I was shocked by how much they were about substantive due process rights and Roe in particular. Griswold a little bit and then Roe.

And I was surprised because today you think of it as a general theory about structure and rights and not just the unenumerated rights, but the enumerated ones too. And it was against that backdrop just striking how much it was one pocket of the rights cases that drove the rhetoric and the examples in the arguments for originalism. All right. Let's take a break there. When we get back, we have got more off-ramps with construction signs all around them to go. We'll be right back.

We're back on the freeway. That was a stop at Buckees. We've had our brisket, and now we're on the highway. So we just did I carry an originalism. This is like the level of generality problem, getting too general. Next up is archaeological originalism. This is the opposite of vicarian originalism. It burrows deep into the legal past in search of an artifact

that will indisputably resolve a difficult issue, even though 21st century English speakers can read our Constitution without difficulty. So he gives U.S. versus Jones. This is actually kind of a Kylo companion case, also a Fourth Amendment case, also about this idea of searches, whereas Kylo was on infrared technology used to search homes. Jones is about GPS devices on the back of vehicles used to track this one vehicle for like 30 days. This is the famous tiny constable case where Stalia's like, I know.

If there was a tiny constable on your car, like that would obviously be a trespass. And basically Alito is going to dismantle that and say, like, look, you were taking. this idea of trespass to chattel totally out of context. There had to be damages back then, yada, yada, yada. You're getting too into the weeds, finding these historical twins, so to speak, and applying them. But, Professor, I guess my problem with this one is the Rahimi, well, it's all the Second Amendment cases, actually, which is, yeah, but boy, they sure do keep looking, like demanding these historical twins when it comes to the Second Amendment, in particular the Wolford case out of Hawaii about property rights and the Second Amendment and when, you know,

you could deny someone the ability to enter property. I don't know, man. The Second Amendment I carry in versus archaeological, I don't think is helpful to me at all in either deciding the cases or even predicting their outcomes. There's a version of the archaeological originalism thing that I think is hard to deny and actually creates interesting resonances with like people like Justice Barrett, for example, which is, you know, you can't say, I, you know, we rifled through James Madison's diaries and there's a page that had been torn out and now we found it and we used AI to read it. And it turns out, therefore, something, something Fourth Amendment.

And that seems totally right. And it just falls straightforwardly out of the idea that it's the original public. meaning that you're or the original law or whatever. It's an original something that's been promulgated or that's visible to the public that is the touchstone. Fine. Then you point out, I think rightly, and the reason that resonates with Justice Barrett is that she said things like, look, just because something's old and dusty doesn't mean that it has authority for an originalist, it needs to actually tie to the original understanding of the text.

Then things get a little trickier. I agree with something like the Second Amendment where they say, okay, well, the original meaning was a right that was limited by a set of principles and the best evidence of the principles is early practices and those are like longstanding gun regulations. That's an archaeological dig. It can be archaeological if, for example, the regulations are pretty spotty and rare or if they were salient to some local community in Kentucky but they weren't to the nation. And, you know, now officially they're looking for patterns in the regulations.

So they're trying to get away from that super narrow one-off type of touchstone. But it's a serious question exactly how tied those practices were to the public understanding of the text that they adopt. I'm not a particular fan of Bruin. So I'm happy to throw Bruin under the bus under the or off the ramp or into a ditch off the shoulder of the ramp of archeological. originalism, something like that. This is the part of the op-ed that as much as I hated the insecure originalism discussion, that's how much I loved this one. That the, I don't like archaeological originalism, as I have made like very clear in the

text history and tradition debate. And I found this very welcome to hear him walk through this and was, and I agree with this part entirely. I mean, I do have some questions that Sarah had a, about the Second Amendment cases, but it's also he was not in, he was not with Thomas and Rahimi. So, you know, if you go Bruin to Rahimi, he is much less than the archaeological originalism camp in Rahimi and then if you look at that, then that recast Bruin a bit. And it recat, as apparently the majority intended, was to recast Bruin as more general than

particular. And Thomas, who of course wrote Bruin, is going, no, I know what it meant. But he, as happens on every now, and then the cheese stood alone at that point. But I feel like if you're looking at that and then adding in this, Abed, okay, he seems to be much less on the archaeological originalism side of the aisle than it might have appeared initially with Bruin. Okay. Next off-ramp, partial originalism. This occurs when an originalist rule is combined with a non-originalist one, and the decision is presented as originalist. An example is Collins v. Virginia from 2018.

Ryan Collins had covered a motorcycle with a tarp and parked in the driveway of a house that belonged to a woman with whom he was spending the night. Oh, Justice Alito. A police officer had probable cause to believe that the motorcycle was stolen, and the Mr. Collins had driven it in an illegal high-speed chase. The officer checked and confirmed his suspicions.

But the court held that because the officer entered the house's curtilage property surrounding it that has the same constitutional protection as the house itself, he had committed what would be a trespass under common law and therefore it needed a warrant. That would have been a sound originalist argument if the house belonged to Mr. Collins. But at common law, a mere guest couldn't sue a person for trespassing on the host property. but the court relied on basically other cases. Minnesota versus Olson, which held that an overnight guest, has a reasonable expectation of privacy in somebody else's home. And of course, the exclusionary rule, the idea that if the police violate your Fourth Amendment rights,

that evidence cannot be used at trial against you, also not in the Constitution. And so his point is you can't stack things on non-originalist grounds. But again, I almost want to put a pin this one to get to the working judge originalism, because he literally later says you can stack things on non-originalist grounds that are precedent of the court, particularly talking about the privileges and immunities clause. So I can't stack things on the exclusionary rule, but I can stack things on the slaughterhouse cases. You know what? Maybe I've actually just set this up. So,

Professor, why don't you tell me why you can stack sometimes and you can't stack other times under this partial originalism. Gosh, I hate to shill, but... No, I want you to shill. That's why you're here. And I'm telling you where, you know, I did disagree with them at some point earlier. We know, we know. I'll keep looking for chances. But the...

So in this case, here's the... I think here's the unifying threat. Yeah, a judge is supposed to be an originalist, according to originalism, of course. But a judge's fundamental job is to decide cases and controversies. So if you put those together, the judge's fundamental obligation... is to reach originalist outcomes. The question is not how much of the opinion sounds originalists, except to the extent that that's going to affect outcomes.

So here he's saying, in the case you described, he's saying we got to make 50% of the opinion sound originalist, which is all to the good. But because of the other 50% being combined with it, we reached a non-originalist outcome when our main job is to reach originalist outcomes. And the opposite is true in the other setting you're describing jobs. So with substantive due process in general, I guess he was talking about McDonald there, the gun case, but the point applies across the board. He says, all the egg-headed originalists want us to switch from doing substantive due process under or unenumerated rights under and end incorporation of the Bill of Rights, under the due process clause to doing it under the Prolidiouser Immunities Clause for the 14th Amendment.

Because as an original matter, that's where most people think it should be housed. I agree that as an original matter that's the much more natural home. But he says, and then he says, we shouldn't do that because it would be too disruptive, stare decisis, let's sleeping dogs lie, let's just keep going on the path that we're going. Now, I think there can

be counter arguments to what he said there, and we can talk about them in a second. We'll bring on a Thomas clerk for that. Yeah. I can do them. I contain multitudes. Okay, I can. But the way to reconcile it with the point about Collins is that

In that case, one thing that he says in a footnote in Dobbs is that, look, Justice Thomas wants to do an enumerator rights analysis under privileges or immunities, but it turns out it would be basically the same test. Under privileges or immunities, according to this case called Corfiel v. Coriol, the question is whether the rights are basically deeply historically rooted. And that's our test under due process too. So the outcomes will be the same either way, which is why Justice Thomas can sign this opinion in good conscience, even as he writes separately to say. Here's how I wish it had been written. So if outcomes are the fundamental thing, and the question is, are you reaching originalist outcomes because your job is to decide cases and controversies, then mushing originalist and non-original stuff together is bad when it leads you away from the originalist outcome,

and it's okay when it, or at least less bad, when you still have the originalist outcome. Okay, that's been your least persuasive argument for me so far. Can I say why? What I think the counter argument to that would be? Yeah. The counter argument would be if it turns out that sticking to the wrong clause, for example, when it comes to incorporation and unremrued right, actually works further distortions. So, you know, if it turns out that it's not just like the same outcomes. Like the exclusionary rule, by the way.

Like everything works further distortions. The more you travel down the wrong path, the more you're heading the wrong direction. Exactly. So it just comes down to the substance of the question case by case, which is, is it actually true that having. the wrong reasoning or citing the wrong text at the beginning of the analysis leads us overall, maybe not in this particular case, but in other cases, to different outcomes. Maybe if only by distorting what other provisions are doing. And when that's true, then I think this defense doesn't work. I feel like in the privileges and immunities versus due process context, we're basically,

the legal question tends to be something like, are we still on the same time zone? And yeah, privileges and immunities and due process as they have continued to diverge for 100 years are still in the same time zone. But then in the exclusionary rule context, because of the legal question there, it was more like, are we in the same county? Well, no. After whatever it's been, 70 years of exclusionary rule, we're no longer in the same county as those two paths have diverged. But by the way, we are still in the same time zone. It's just that's not the legal question in the case. So the idea of stacking or on continuing on the wrong path. Yeah, because it matters what case it is and what facts you're applying. And it seems really weird to me to make it outcome determinative of whether

it's okay to stay on the wrong path. It seems very non-alido. So I think it's true that if the different reason, I realize now the highway is interstate, it's different time zones. I'm trying to keep the metaphor. I think it's absolutely right that if the different reasoning leads to different outcomes, even if not in this case, then it's a problem. And then the question is just the usual stare decisis analysis. Like, okay, it's a problem. So stare decisis kicks in and do we have a good enough reason to get away from the problem? And probably I would be more comfortable fixing problems than is at least suggested by the op-ed by him. Okay. I guess I just like, on the one hand, it's sort of like this Chesterton's fence analysis with privileges and immunities,

God only knows what can of worms that could open. I agree, and I am worried about that, by the way. I sort of know the next step in our due process world, and I don't know what would happen if we just rip off the privileges and immunities bandaid, but I will tell you this. I know that it will affect the outcome of some cases at some point. So, like, the idea that, like, well, it wasn't case determinative in McDonald? Like, okay, but what about all the other cases that it could have been

that you didn't even grant cert on? because we didn't have privileges and immunities, all the economic liberty cases that IJ was bringing on horse dentistry and needing a license to be a florist. Yeah. So part of it depends really on whether that footnote in Dobbs is right about the test actually being the same. Because if the test is the same, about deeply rooted in our history or whatever, then we can expect outcomes not just in that case, but in other cases to be the same. But I think on the face of it, the main difference that would happen if we switch from due process to privileges or immunities is that there would be now. a serious argument that the rights at issue, so any unenumerated right, plus any Bill of Rights Right's applied against the state, would only be enjoyed by citizens and not by others.

Yes, I'm so glad you said that. I was getting there. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor any state shall deprive any person of life, liberty, or property. So by its terms, you could end up in a world where you had rights incorporated against citizens involving any state or local law. But if it's a federal law, it would still be incorporated against citizen. If you're enforcing a federal law, it'd be citizens and non-citizens alike because the text of the Fifth Amendment, the First Amendment, etc., is not citizen-based. Pass an amendment, David.

Wow. Wow. Wow. That's interesting. That's interesting. I'm just, I'm doing an issue spotter, Sarah. I'm doing an issue spotter. I'm totally joking.

You're right, it's a mess. Okay, when we get back, we've got philosophical originalism, academic originalism, working judge originalism. We've got more of these off-ramps to discuss. We'll be right back. Hi, everyone. This is Amy Howe, the co-founder of Skodas Blog, the gold standard for independent insight and analysis of the Supreme Court.

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at scotusblog.com and go to plus. Thanks so much for listening. We appreciate your support. In communities across Canada, hourly Amazon employees earn an average of over $26 an hour. Employees also have the opportunity to grow their skills and their paycheck by enrolling in free skills training programs for in-demand fields like software development and information technology. Learn more at aboutamazon.ca. On the road again. Okay, let's keep driving, guys. Okay, we're back on the highway. We've got two more to go. One, philosophical originalism. This is the theory that original meaning of the Constitution embodies the thinking of a particular philosopher. I addressed this mistake in my

concurrence in Fulton versus City of Philadelphia. I just emphasize that because many of us think that it was a majority opinion that was no longer a majority opinion, in which I set out my understanding of the original meaning of the First Amendment's Free Exercise Clause. Some academic work on this subject had relied heavily on John Locke's writing about church and state. I don't doubt that Locke's ideas were in the air when the First Amendment was adopted, but I rejected the notion that the Free Exercise Clause contains a footnote reading, C.J. Locke's a letter concerning toleration, parentheses 1689. First of all, just love that paragraph. It is some pure SAA writing, and I am all for that. I think this is kind of an interesting one, though, because the founders

were quite steeped in these same books. There were far fewer books available at the time. They were all reading the same, I don't know, do you want to like call it 15, 20? We're not talking that many books that they all would have had in their library. Jeff Rosen has done an excellent job writing about what these books were in his book Pursuit of Happiness. He has pursuit of liberty and pursuit of happiness and they're both excellent, but pursuit of happiness is the one I'm talking about right now. I have to remember that. And so like, yeah, the text doesn't have John Locke, so I get it. But reading the same thing that all the founders would have read when they were adopting the First Amendment

doesn't seem irrelevant to me either. Yeah, I don't know what to make of this either. I think it's a deep methodological question, not just a historical question, because any originalist reading the Constitution faces a choice for any given provision. Do you read this as an ordinary meaning text or as a term of art?

Because sometimes, yeah, it's the general public that's participating in the ratification, they're the sovereign, but sometimes what they understand themselves to be adopting could be, okay, whatever the experts mean by this. And that's the term of art. And if the experts are lawyers who also happen to be really, really steeped in political theory and some of the same political theory, then it's not crazy to think that some

background philosophy should be used to apply the provision. But how you decide that first step, is this a term of art or not? And is it the kind of term of art that links up to some philosophy that was in the air? I think it's a really hard question that I haven't seen great stuff on and I don't know what to think about. You know, can I, can I take a stab at this? Because there's, I, okay, if I'm going to rank these, insecure originalism was the, that was the part I liked the least. Archaeological originalism is the part of the op-ed I like the most. This is the most interesting.

I feel like we finally got to like, this is the thing. Because it really does get into intent meaning how those are blurry. on the one hand, original intent is not really originalism, original public meaning is more originalism, but meaning to whom? Because here's where I have beef with this. So I agree to some degree, certainly about you can't cite just C.J. Locke, in large part, because Madison goes further than Locke. Madison thought Locke was cramped, that with that toleration wasn't enough. You know, if you read remonstrances, Madison's remonstrances in 1785, he's gone further than Locke. I look at Madison as the next evolutionary step beyond Locke, so you can't go back to just lock, but that's micro.

That's just on that one issue. Here's macro. After dinner, traveler, I sometimes envision a scene at a colonial era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights. They read the text of the First Amendment and see that it prohibits Congress for making any law that impairs the free exercise of religion. What would they make of that language? I almost felt like jump. I wanted to jump into that and say, the founders would not have cared that much at all what the regular travelers and area residents thought about what it meant.

These are the guys who put together an electoral college that was going to be a committee meeting to decide who the president of the United States was. that's how leery they were of popular sovereignty. And so sort of the idea that a judge, again, even further removed from the democratic process, should be thinking, well, what should some dudes in 1788 have thought about like the, and it would have been dudes, I guess, that would because the women didn't vote, what would they have thought about or couldn't vote, what they thought about about this? I don't think the founders would say that's their test here, like the regular folks. And it gets shrieve to your point, you know, you're making earlier, like, wait a minute,

is this a term of art versus just something that's just words on a page? And so that struck me. Do we think that the founders would have said, yeah, I wonder what the folks of the tavern thought about this? or would they have looked at that as a kind of popular sovereignty that they were kind of trying to avoid with the whole Bill of Rights to begin with? First of all, women could vote in New Jersey until 1807.

Women could vote in some of the other colonies. Their voting rights were taken away even before that. It was actually, it's weird. Women had more rights at the founding, and then there was sort of this movement, really kind of fascinating movement, stripping women of rights right after the founding that we don't spend a lot of time on.

So just footnoting that there were moments, actually in the time era that we're talking about where women could vote in some of these colonies. But also, I just want to add to this before you answer the problem that I have, which is. Yeah, Sharif, answer this. It's archaeological originalism combined with this philosophical originalism problem, which is, okay, we assume at the tavern they weren't all up on lock. Not even sure that's accurate, but fine. But then, again, you go back to Bruin or some of these Second Amendment cases, and we're citing like the 1218 laws of whatever as it was applied. I promise you they didn't know about that.

So why is that relevant from the 13th century? But John Locke wouldn't be. And again, I'm not saying that one, that there isn't an argument to get rid of both. But I find it weird to say that the 13th century laws used by the king, definitely everyone knew that we were. we were importing that into the second amendment when we ratified it. But no, they had no idea about John Locke for the First Amendment. Great. All right. So first, I will as counsel respond to David, and then as Sharif. It's a hot bench. As Sharif, I'll take, I'll take my own position. That partly sides with both of you. Okay. And against Justice Lee's point in this last part.

So, David, what you were saying is, well, how do we know that the founder, do we really believe that the founders cared what the people around the hearth. I forget where we are, a pub thought. And I agree with you, they probably didn't. But that way of framing the rebuttal assumes that what matters is what the founders thought, as opposed to what the people around the fire thought, when just Leo might say, well, that's the whole question here. And if we're talking about public meaning, and if the people are the sovereign, they're the

ones who ratified it, then the founders just served up the thing that they decided on pro or con. And so maybe we should go by the understanding of the people who have the ultimate authority, the ratifying public. Okay. But I agree with you, Sarah, that you can't really square all of this. If the question is like, if our only touchstone is what people around the fire at the pub after a few drinks, but not too many drinks, knew or believed or we're aware of, then we can't help ourselves to the loyally materials that get cited in a lot of Second Amendment cases. where like unless you had a West law password, you might not know what the contours of the right were.

So I think it's inevitable that there will be, that the only way to make sense of this stuff as law and to try to apply it with some determinate contours is to treat some of it as a term of art. And the court actually talks in that way, even in the same opinions where they say, like in Heller, Scullia says, well, the Second Amendment is, you know, is ordinary,

it applies by its ordinary meaning. He also says, but it enshrines of preexisting, which was given contours by a bunch of legal materials that the dictionary definition would not have given you. So there's this tension everywhere. I think the only way to go with some of these provisions is to treat it as a term of art incorporating some legal material. And then the whole game is in figuring out what material and then how to read it. And that's why we're getting into the messiness that a lot of the Second Amendment and other cases have shown. Okay. So his last one, and this remember is the seventh one where it's like, well, you can take this off ramp, but you should be

wary in this off ramp. You know, it's like all the other off ramps have like the flags and cones. You definitely can't go on them. This one has more like a there be dragon sign maybe above it, but like there's nothing blocking you from taking it. So this is academic originalism. Here is the turning point, he says. For scholars, it is the right turn. An originalist judge may in good conscience take the same off ramp. But for me and many other originalist judges, it isn't the preferred course. And here he makes the point about following down still the due process clause versus the privileges and immunities clause that we discussed before. And he says in a similar vein, for instance, a Supreme Court justice must also decide what to do when the court applies

a prior decision from which he dissented. He can stick to his guns and remain in dissent, or he can accept the earlier decision, stay in the conversation, and try to steer the case toward the right path. Both are honorable choices, but judging is practical work with real-world consequences, and it is done under conditions that may militate against scholarly purity. Originalism disciplines the decision-making process, but it doesn't eliminate the need for judges to exercise judgment. Originalist judging requires a degree of humility, but it also demands boldness to go where the original public meeting leads and self-confidence in the face of hostile media and legal academy. So, originalism isn't easy, but if we're

originalist judges stay on course. I am confident that the theory has a bright future. Okay, guys, we got to the end of this very long op-ed from the Wall Street Journal and all seven off-ramps. By the way, I think that the practical originalism, working judge originalism point at the end here, and especially forget the privileges and immunity things, because I actually think that's a little more in the weeds than it needs to be. His point on, you've dissented in the case, now that's precedent. So now you join the majority to try. to steer where that precedent, that road that you didn't want to take, where that road may lead, that is the perfect distillation of what, to me, practical originalism, working judge originalism

should actually mean. And on this one, I am 100% on board that judges are different than academics. And both can be good originalists in good standing and come out differently on something because of exactly that problem. I'm with you on that, Sarah. I thought that that, I liked this. It requires a degree of humility. It also demands boldness and self-confidence in the face of a hostile media legal academy. I think all of that is correct. I think all of that is absolutely correct. Look, overall, you know how much I like to see these guys talk and explain where they're coming from.

So even though we picked apart some of it, I'm glad he wrote all of it because it gives us a... Oh, one of the best things from a Supreme Court justice in years in terms of really, really, not like, oh, I can't talk about cases, they may come in front of me. That's all true. I don't mean to make fun of it. But here where he actually cites cases to highlight what he's referring to was so helpful. And I would love to see a similar thing from Justice Kagan, not in the Wall Street Journal in the New York Times for selfish reasons, but did you see like, what is her philosophy? And I think in a way that's digestible by, you know, the public that's interested in this. And for the same reason that I keep going back and I shared this example of a friend of mine, non-lawyer friend of mine, who told me,

because he listens to the podcast, he started listening to Supreme Court oral arguments to be encouraged about America because he saw intelligent people debating difficult issues in a civil manner, though with deep conviction. And I feel like the more we're exposed to the actual thinking of these justices, the more serious you will see that they are. In other words, you're going to actually feel like, okay, this is an actual real philosophical debate engaged by smart people in good faith. And that is such a divergence from our normal political process. So, Sharif, are you with us?

Do you want more of this? I love it. I love it. He gave this first as a speech, I think, maybe at Schooley Law School or at AEI, somewhere like that. It says it at the end of the hot that I can't remember the details. And I remember thinking when I first. read about the speech, that it sounded like an unusually substantive speech for a justice in that

kind of setting where usually they get asked, you know, does oral argument make a difference to your outcomes? Like, do you, you know, tell us about the handshake before and after oral argument? And all that is great and part of civic education and it's valuable. But for nerds and including podcasters, if I may, I think this stuff is is a lot more interesting. You're right. This was from a 2025 lecture at George Mason's Antonin and Scalia Law School. And it does appear as one of the essays in the book, along with other essays that are quite similar,

you know, they're all sort of along this theme. They are substantive, working judge originalist essays. There's not a whole lot of the fluff. Before we let you go, you now are allowed to take off your counsel for Justice Alito Hat. What is the number one thing that you disagreed with your justice on at any point And here I'm really looking less for legal things and more food takes, movie takes, et cetera. Well, actually, the first thing that comes to mind is a legal thing.

There was, if we were in a case discussion, a topic in constitutional law that he cares a ton about came up. And we were talking about different positions and the party positions and whatever. And then someone said, well, justice, what do you actually think? And he said, well, I've thought long and hard about this for decades. And I think ultimately I came down on, and this is a topic dear to my heart. And ultimately, I came down on the view that X. And he said, what do you all think? And I immediately responded, ooh, I don't like that at all.

It just blurted out of me. I didn't mean it. It's not the way people talk in those settings. And I felt kind of embarrassed afterward. My coclors definitely felt embarrassed for me, of me. and I wrote to him afterwards, I said, you know, I'm sorry, by the way I put it, and it's something you care a lot about. I didn't mean to disrespect the long deliberations you've had.

And he couldn't have been more gracious about it and said, actually, I really want to keep talking about this, what you said, you know, after that first part, sounded interesting. And I bring that up because even though I'm sure we disagreed about food and other things, that back and forth is a nice encapsulation of his in-person demeanor. which is very different from his oral argument demeanor, where he's unusually humble, not just for a justice, but for a human, and unusually generous,

and whatever the opposite of overbearing is underbearing, in ways that you don't really see in the oral arguments, you don't really see them in the speeches. You see them a little bit in some of the interviews that are coming out now, and you see it a lot in shameless. You know, one thing that I have thought a lot about as to why is it that the judicial,

the court and the judicial system broadly are the last branch standing compared to say Congress and others is I feel like the, and I've said this before in this podcast, mom and dad are still in charge. In other words, there is a mentoring process. There is a when you're young and as you're saying blurting things out, you're not really running the place. You're being shaped. You're being molded so that by the time people are encountering the legal system in its manifestations, the inmates are not running the asylum. And in many ways, I feel like in politics, it can often be the reverse, that we privilege the people who blurt. The younger voices sometimes get privileged more than older voices. Sometimes you get the feeling that members of Congress are almost led by

their staffs. You know, hey, look, you're trending on Twitter, boss. Here's what you need to do to get more of that. And that story, you know, how much of that clerk relationship really is a mentoring process? How much does it shape you? And you had to do more than one clerkship before you land with Justice Alito. And so talk about the influence of that clerkship process on you more broadly. Yeah, it's definitely huge. I mean, and this is part of the explanation of the point I started with in the embarrassing way that you can always sound like you're shilling or disloyal and there's no middle ground about your boss is that it's a, It's, first of all, they've given you an enormous opportunity at a point in your career where that almost always involves a gamble and in a way that opens up and shapes the direction of the rest of your career for your whole life.

So you owe them a ton. But it's not just that. It shapes the relationship itself like you're saying. You're seeing up close somebody who's way, way more advanced and you're seeing their skills and learning from them, but also their ideals, the ideals that shape how they do their work. And so it's in the conversations about the cases, but it's also in just watching them how they deal with colleagues and challenge and outside criticism and uncritical fans and uncritical enemies. And so it makes a huge difference. And it's really hard to disentangle what you would have been like without the clerkship from where you are after it. Professor Sharif Gyrgyz of Notre Dame for the next few months.

Thank you for joining us and donning your SAA defense counsel hat. You very much appreciate it. Congrats to the Alito Clerk family on your boss's book being out. And happy OT26, everyone. Thank you. Thanks for having me. In communities across Canada, hourly Amazon employees earn an average of over $26 an hour. Employees also have the opportunity to grow their skills and their paycheck by enrolling in free skills training programs for in-demand fields,

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