Highly sophisticated constitutional theorist Sam Alito huffs that “ordinary people” understand deep truths about the Constitution that he pointy-headed elites don’t. His actual feelings about the ordinary people he strongly tends to disfavor in his actual jurisprudence can perhaps be discerned by the fact that the beliefs he attributes to the abstract ordinary people are…completely useless banalities:
Justice Alito tried a populist approach, too. “The Constitution doesn’t always mean what we would like it to mean. The statutes that Congress enacts do not always mean what we would like them to mean. That is exactly what we mean by the rule of law,” Justice Alito said. Editorial writers “may not appreciate the difference between what the Constitution means, and what one might like it to mean,” he said, “[but] ordinary people still do get this critical distinction. The assault on the traditional idea of the role of judges began more than 100 years ago but ordinary people stubbornly hold on to some old-fashioned beliefs and one of these is the idea that the Constitution means something, statutes mean something, and the role of the judge is to interpret and apply the law as written.”
Yes, the difference between Alito and his more liberal colleagues is that he just applies “the law” and they do not. So when Alito consistently finds that ambiguities in civil rights statutes were intended not to protect civil rights, that’s just what the law says. When anybody reads the phrase “due process of law” in the Constitution, they can instantly see that this means that “corporations that injure people cannot be liable for more damages than can be arbitrarily determined by counting the fingers on Anthony Kennedy’s hand.” If, on the other hand, you believe that “due process” entitles you to a trail before a judge who hasn’t been given massive amounts of money by your adversary, you’re crazy! And any ordinary person, upon reading the 4th Amendments prohibition on “unreasonable search and seizures,” would certainly understand that this doesn’t apply to strip-searching 10 year-old girls without a valid warrant. It’s clearly stated in the secret appendixes to the Constitution that are only distributed at Federalist Society meetings.
In conclusion, either you agree with Sam Alito or you’re a nihilist. Only a partisan would disagree.