The editors of the Yale Law Journal asked me to contribute to a series reflecting on Justice Alito's first ten years on the Court. In lieu of praising or criticizing the Justice, I elected to ask into what distinguishes him from his colleagues.
I have concluded that, especially in light of Justice Scalia's passing, Justice Alito has become the primary judicial voice of the many millions of Americans who appear to be losing the culture wars, including in conflicts over gay rights, women's access to reproductive healthcare, religious exemptions, and affirmative action. As evidenced, for example, by his opinions in Hobby Lobby and Obergefell, Justice Alito empathizes with the plight of traditionalist conservatives as the world changes profoundly around them, and he seeks to preserve their ability to refuse to accept the new normal.
Given the "hinge" point in American constitutional history that appears to be fast arriving, I also predict that Justice Alito's dissents on behalf of traditionalist dissenters will become more frequent and more strident in the years ahead.
Part of my argument differs in a subtle but important way from Mark Tushnet's recent declarations that the ideological left has already won the culture wars. In my view, a series of recent developments now renders it possible to imagine that the left will win the culture wars. Actually winning, however, will require more than a new Democratic president and a relatively liberal Court for the time being. Actually winning will also require continued changes in popular understandings of the moral and constitutional status of groups who traditionally did not count--or count for much--in constituting the People in whose name the Constitution purports to govern.