Justice Alito’s Favorite Trick

Xylee Alvarez

February 2026

Why his hypotheticals aren’t neutral and never have been 

If I had to describe Justice Alito’s hypotheticals, I think I’d describe them as probing, engineered detours, designed to pull the Court away from the case it is actually deciding. Hearing them again and again just makes me see how less genuine his inquiries are. 

Alito asks these hypotheticals to redefine the stakes. 

A recent case where his hypotheticals were especially present was West Virginia v. B.P.J, where the Court was asked to consider the real experience of a transgender student navigating a school system that treated her identity as a problem to be managed. 

During oral arguments, Alito posed what seemed like a straightforward question, but really, it changed the whole conversation. Justice Alito asked how the Court could interpret Title IX before deciding. The question is a basic question about statutory interpretation, but HOW he asks it changes everything. Instead of asking how Title IX protects students from discrimination, the focus shifted to whether protection is possible at all until “sex” is defined in the narrowest possible way. The harm from the question is exclusion, isolation, and unequal treatment. 

That is what seems to be the pattern. Justice Alito’s hypotheticals do not just test principles; they work to delay them. By insisting on resolving imagined edge cases and definitional uncertainty first, his questions pull the Court away from the real people standing before it. The student in B.P.J becomes less visible, replaced by this theoretical framework that treats her experience as premature. 

I think what makes these hypotheticals especially effective is how truly neutral they sound. They invoke that sense of discipline and textual fidelity. But neutrality can be strategic. By framing inclusion as a question that must wait for semantic clarity, the law is encouraged to hesitate rather than act. 

Justice Alito knows the power of oral argument. He knows that questions signal skepticism, shape the narrative, and guide outcomes. His hypotheticals are not casual musings; they are carefully constructed to emphasize uncertainty over urgency and speculation over lived harm.

These questions aren’t really questions. They are choices, about what the Court prioritizes, what it postpones, and who is asked to wait. And for the people whose lives are affected by these decisions, waiting is anything but hypothetical.