Supreme Court justices write and publish books from time to time. Some, like the autobiographies of Clarence Thomas and Sonia Sotomayor. can be interesting to a general audience. Others are meant to be read by lawyers, judges, and law professors. Only rarely are these newsworthy. Justice Samuel Alito’s new book on originalism—and the media tour that accompanies it—is one of those that’s managing to make some waves.
The book, titled So Ordered: An Originalist’s View of the Constitution, reads like an endcap to a 36-year judicial career. In the introduction, Alito explains that the book consists of “adaptations of speeches I delivered over a period of eighteen years, from 2007 to 2025” that were “not composed with the idea that they would eventually be woven together into a book.” Perhaps it is fitting that a book about originalism has very little new material in it. I jest only in part because at least some of these speeches have not been printed for the general public before.
The book release comes at a key moment for both Alito and the court. One looming question is whether and when Alito will retire. Polls show that Democrats are likely to retake the Senate in November’s midterm elections, which would likely prevent Trump from filling the vacancy with a nominee who shares Alito’s judicial outlook. If Democrats retake the White House in 2028, another opportunity might not come for six more years. In response to speculation, Alito ruled out retiring midway through the court’s current term earlier this week. Beyond next June is an open question.
In an interview with CBS’s Jan Crawford, Alito also ruled out the prospect that the Supreme Court would overturn Obergefell v. Hodges, the landmark 2015 ruling that struck down same-sex marriage bans nationwide. He was among the dissenting justices from the ruling 11 years ago and has not changed his position on whether it was correctly decided. But he has argued that the decision’s impact now counsels against overturning it.
“One of the important factors we take into account in deciding whether we should reexamine a past decision is the degree to which there has been reliance on the decision,” Alito explained. “Obviously a great deal had changed in the country as a result of Obergefell. There was a lot of reliance in various ways on the decision in Obergefell.” Overturning it now would call into question untold numbers of marriages, he suggested, with a cavalcade of other legal consequences that would follow.
A few right-wing legal groups and litigants have mounted legal challenges against Obergefell in recent years without success. Even those fringe efforts have caused some alarm on the left, amplified by the court’s willingness to revisit and rewrite other major precedents. Alito’s public disavowal of overturning Obergefell will likely end those efforts altogether for the foreseeable future. If he is not on board, then there certainly won’t be five votes among the other justices to pull it off either.
Alito’s book, along with the interviews and an excerpt in The Wall Street Journal op-ed pages, dwell on these sorts of dilemmas for an originalist judge. “I describe myself as a ‘working judicial originalist’ and warn against various wrong turns that originalist judges should avoid,” Alito wrote in his book. He also described himself as a textualist, meaning “that, in my view, statutes should be interpreted to have the meaning their words convey in context.”
“True originalism sets out the proper method of constitutional interpretation,” Alito explained. “Provisions of the Constitution should be interpreted to mean what they were understood to mean by the public at the time they were adopted. And because we have a good Constitution, originalism generally produces good results. More than any other theory, it furthers the common good, and originalists should not be afraid to discuss good or bad results or originalism’s ultimate aim.”
Alito tried to define his approach to originalism via negativa. His metaphor imagined a highway with seven different off-ramps that an originalist judge could take to varying disastrous ends. One of his “off-ramps” is what he describes as “show-it-to-me-in-black-and-white originalism.” While originalists “must always start with the text of the Constitution,” he explained, “there are times when an important originalist principle is not set out explicitly but instead emerges from the very structure of the Constitution.”
This position is not really an originalist one, in the sense that nearly everyone has believed there to be implied powers in the Constitution since its ratification. Even early strict constructionists like Thomas Jefferson were willing to infer some unwritten powers, like when he agreed to the Louisiana Purchase even though Congress had no explicit power to acquire new lands. As an example, Alito first argued that this applied to the anti-commandeering principle, which holds that the federal government cannot compel states to exercise federal law-enforcement power.
“That is an unmistakable inference from constitutional structure,” Alito wrote. Having established that motte, he then retreated to the bailey of a much less defensible inference. “The same is true, I would say, about the presidential immunity we recognized in Trump v. United States—an immunity, I should add, that applies to all presidents. In this context, the absence of explicit constitutional text is not decisive.”
Wait, what? Why not, you might ask? He doesn’t explain further. The section simply ends there, and he moves to the dangers of “Icarian originalism,” which he described as the danger of originalist arguments about the Constitution “that would have astonished those who ratified and framed those provisions.” (They resemble, in his telling, the Greek mythological figure Icarus.) His example for it is a single friend-of-the-court brief filed in Obergefell, but the off-ramp could very well apply to presidential immunity.
After all, there is no evidence that the Framers thought the president enjoyed any form of immunity for crimes committed while in office, let alone the sweeping immunity outlined by the Supreme Court two years ago. The Constitution’s text provides no explicit basis for presidential immunity. Nor does it provide an implicit basis for one: The Constitution provides for a limited immunity from criminal prosecution for members of Congress under certain circumstances, indicating that the Framers knew how to grant immunity if they thought it was warranted.
Nor did any founding-era statements support the concept of presidential immunity. Chief Justice John Roberts’ majority opinion barely tried to suggest otherwise. He quoted one of the Federalist Papers by Alexander Hamilton to mean that the executive branch must be “energetic” in its actions. (I’ve discussed Roberts’s misunderstanding of this particular text at greater length elsewhere.) There is obviously a vast gulf of difference between having an “energetic” president and having one that must be allowed to commit crimes as a matter of course.
As for the original public meaning, there is even less evidence that the American people thought this was the Constitution that they ratified. The Federalist Papers themselves show how the Framers went to great lengths to convince the American public and their state legislatures that the new federal government would preserve liberty and avoid tyranny. Founding-era Americans could hardly have believed that they were being asked to approve a constitution where presidents could take bribes for pardons or start illegal wars without any risk of future prosecution. They would have been “astonished” by the idea, to say the least.
Alito did not write the majority opinion in Trump v. United States, nor did he pen a concurring opinion. But we can infer his own approach from how he questioned lawyers at oral arguments in the case. One question, posed to longtime Justice Department lawyer Michael Dreeben, involved a hypothetical scenario that sounds a little too familiar.
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement,” he asked, “but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
This is not an originalist argument. It is also not a constitutional argument—nor is it even a legal one. I would struggle to even call it a policy argument. To take Alito’s musings at face value, the policy in question would be that a president must be given the power to commit crimes without fear of prosecution because he might be prosecuted in the future for his crimes. This scenario would apply to exactly one president to date in American history. Alito insists in his book that presidential immunity is “an immunity, I should add, that applies to all presidents,” not simply Trump—as if critics’ real objection was that Democrats wouldn’t be allowed to commit crimes too.
Even the name of this off-ramp to defend presidential immunity—“show-it-to-me-in-black-and-white originalism”—is derisively defensive towards the court’s critics. The court could not show in black and white from where in the constitutional text this new principle sprang, and they know it. Maybe that is why the book ultimately reads like a barely disguised effort by one justice to convince all of us—and perhaps even himself—that the court’s own wings aren’t melting.
