On Tuesday, October 6, Justice Samuel Alito released So Ordered, his addition to the Supreme Court’s library of vanity books written by justices who decided that their $306,600 salaries are not enough. Alito’s book is particularly unnecessary because most of it is not even original content, but a collection of adapted speeches he’s given since his confirmation in 2006. As it turns out, a lesser-known perk of being a Supreme Court justice is that you can get paid to publish old talking points thrown together by clerks whose names you forgot long ago.
Much of the coverage of Alito’s book is due to ongoing speculation that he could retire soon, ensuring that a Republican president and a Republican-controlled Senate can nominate and confirm his successor. While promoting So Ordered, though, Alito has said that he plans to “serve for a certain number of additional years,” and “intends” to “stick around through this term.” On the one hand, I understand why this is a story; on the other, given that Alito is a lifelong Republican with an alarming history of flying January 6-adjacent flags over his homes, if Democrats take the Senate in the 2026 midterms, I will not be shocked if he changes his mind.
In several of these interviews, Alito has also tried to dispel his image as an angry, partisan culture warrior. In a conversation with CBS News, for example, Alito insisted that he does not try to “further any political agenda” or “help President Trump.” He also sought to assuage concerns that Obergefell v. Hodges, the 5-4 decision from 2015 recognizing a right to marriage equality, could be in danger now that the Court is controlled by a six-justice conservative supermajority: Overturning Obergefell, Alito said, is “not a realistic prospect,” because the decision has led to a “great deal” of change and generated “a lot of reliance.”
Clip via YouTube
Alito, who was among the dissenters in Obergefell, has offered similar assurances before. In a speech last year, he prefaced a discussion of Obergefell by asserting that he was “not suggesting that the decision in that case should be overruled.” In his 2022 majority opinion in Dobbs v. Jackson Women’s Health Organization, he wrote that the Court’s decision to overturn Roe v. Wade “should [not] be understood to cast doubt” on Supreme Court precedents that protect the rights to sexual privacy, contraceptive access, and marriage equality.
But what Alito’s rhetoric elides is the fact that he doesn’t need to declare his intent to overturn Obergefell for the conservative legal movement to keep attacking it. Since that decision, activists have learned to recast their opposition to the civil rights of LGBTQ people as efforts to defend the “religious liberty” of Christians to discriminate against LGBTQ people—a framework that the conservative justices, and especially Alito, have enthusiastically embraced. The result is a legal landscape in which conservative lawyers who litigate these cases are more ambitious than ever before, and confident that they can keep persuading the Court to pare back the rights of LGBTQ people, even if Alito is (sooner or later) no longer a part of it.
Alito has never stopped being upset about the result in Obergefell. “You can’t say that marriage is a union between one man and one woman,” he said at a Federalist Society event in 2020. “Until recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry.”
Parts of So Ordered make even clearer that the way Alito discusses Obergefell in secular spaces bears little resemblance to the way he discusses it among his fellow religious conservatives. At Catholic University of America in 2018, for example, he described Obergefell as “perhaps the decisive point in our nation’s turn against religious liberty.” At Thomas Aquinas College in 2021, he compared opponents of same-sex marriage to victims of anti-Catholic persecution after the Reformation—people who were “so beaten down” that they “shunned the light of day,” he said. This is not praise for people who have accepted the legitimacy of a Supreme Court ruling with which they disagree. It is admiration for people who continue to resist that ruling, courageously living out their values in a godless country.
Since Obergefell, the Court has routinely taken up this mantle, championing “religious liberty” and/or “free speech” in ways that subtly erode the foundation on which Obergefell rests. The justices have privileged the rights of bakers who refuse to make wedding cakes for same-sex couples, for example, and of religious web developers who turn away couples whose marriages they deem insufficiently biblical. They have sided with religious therapists challenging bans on abusive “conversion therapy,” and allowed parents to veto LGBTQ-themed school lesson plans that do not comport with their religious beliefs. Especially in the context of the Court’s other anti-LGBTQ decisions, the message for conservative activists is clear and consistent: Marriage equality is off-limits for now, but as long as you remember to use the magic words “First Amendment,” it’s open season on everything else.
The irony of Alito’s assurances about Obergefell in Dobbs, of course, is that the conservative legal movement’s playbook for overturning Roe represents its best chance at overturning Obergefell, too. When the Court decided Roe in 1973, anti-abortion types did not accept the result and move on; instead, they spent decades organizing a political and social movement that might someday create the conditions for getting rid of it. Similarly, in 1992, when a Court that included eight Republican appointees surprised and infuriated the right by upholding Roe based in part on the “reliance” interests it created, activists did not admit defeat; instead, they built an even more conservative Court that would not let them down again.
In his recent interview with CBS News, Alito was asked to explain why Obergefell is safer today than Roe was four years ago. In response, Alito said that the reliance interests created by Obergefell are “much more concrete” than the reliance interests created by Roe, which, in his telling, merely affected “women’s ideas about the kind of society that they were going to live in.” Given how effortlessly Alito minimizes the plight of people who are getting sick and dying because they cannot access abortion care, I imagine that if the opportunity presented itself, he would have little trouble reframing Obergefell as about, say, gay couples’ desire to throw a certain type of party, which in his view is an interest the Constitution does not protect.
For all that Alito has accomplished for the conservative movement, Obergefell might be his biggest loss. But even if he never gets to cast a vote to overturn it, he is already doing the next-best thing: laying the groundwork that will allow a new generation of Republican lawyers and judges to finish what he started. As was true of Roe, the real danger to Obergefell isn’t that this Court will overturn it tomorrow. It’s that future Courts will hand down so many decisions unraveling so many protections for LGBTQ people that someday, the right that Obergefell guarantees will be hanging by a thread. All the Court will have to do is cut.
