Meet The Justice Reshaping The Supreme Court And Restoring The Constitution

Summary

Podcast Summary: Federalist Radio Hour

Episode: Meet The Justice Reshaping The Supreme Court And Restoring The Constitution
Date: May 12, 2026
Host: Matt Kittle
Guest: Mollie Hemingway – Editor in Chief, The Federalist; Author of “Alito: The Justice who Reshaped the Supreme Court and Restored the Constitution”

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Main Theme:

An in-depth exploration of Justice Samuel Alito’s life, jurisprudence, and transformative impact on the Supreme Court, framed around Mollie Hemingway’s new book. The episode covers Alito’s background, judicial philosophy, major Supreme Court moments, and the often overlooked inner workings of the Court.

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Episode Breakdown

1. Introduction & Purpose

• Matt welcomes Mollie Hemingway, highlighting her credentials and her new book on Justice Alito ([00:55]).
• Purpose: To spotlight the underappreciated role of Justice Alito in shaping the Court and constitutional restoration.

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2. Samuel Alito’s Background and Early Influence

Family & Upbringing ([03:35]-[07:21])

• Alito grew up outside Trenton, NJ, son of Italian immigrants – strong emphasis on education and humility.
• Baseball’s influence: “He grew up as a Phillies fan… he thinks this did shape his personality” – Mollie Hemingway ([05:03]).
• His father’s work: Shaped by seeing the importance of nonpartisanship and the complexities of redistricting.

Personal Traits

• Reserved, morally grounded, “big moral courage” ([03:35]) – respected for substance over flash.
• Athletic and intellectually curious: Excelled in sports, Latin, and literature, was class president, and described as “very well balanced”—Mollie notes, “He’s the tallest justice, he’s imposing, he cares about fitness and always has.” ([09:57])

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3. College Years & Political Awakening

Princeton & ROTC in the Radical Era ([11:58]-[14:31])

• Witnessed elite radicalism firsthand during the late 1960s-70s; joined ROTC, experiencing hostility toward tradition.
• “He realizes…these elites never captured him…he kind of thinks they’re losers.” – Mollie Hemingway ([13:03])
• Yale Law: Maintained independence from institutional orthodoxy; family values more influential than Ivy League norms.

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4. Early Legal Career & Path to the Supreme Court

([15:01]-[18:00])

• Served as clerk, then U.S. Attorney in New Jersey, handled high-level cases, joined DOJ under Carter (apolitical role) then Reagan (noted for consistent conservative principles).
• Attended Federalist Society meetings, which eventually revealed his conservative legal philosophy to Reagan officials.
• Reputation for consistency: “He just never fails, he never misses…he just is consistent and does his work and then does it really quietly.” – Mollie Hemingway ([17:57])

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5. Judicial Philosophy: Is America a Credal Nation?

([19:09]-[21:39])

• On the “creedal nation” question (debate between Justices Gorsuch and Alito):
  • Mollie interprets Alito as nuanced: Values tradition, community, and practical originalism.
  • “He’s much more nuanced than a Scalia or Gorsuch on these things." ([20:53])

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6. Alito’s Nomination & Confirmation

([24:15]-[31:36])

• Bush administration’s search: Nomination drama after failures with other candidates (Harriet Miers, etc.), leading to Alito as a “merit over identity politics” choice.
• Confirmation was tough but not as acrimonious as later nominees (e.g., Kavanaugh).
• Alito’s lack of campaigning compared to some peers; Scalia’s famous advice: “The first five years you’re here you will wonder how you got here and then…how anyone else got here.” ([31:17])

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7. Alito’s Jurisprudence and Leadership on the Court

(Statutory vs. Constitutional Interpretation, Key Cases, Strategic Approaches)
([32:55]-[39:54])

• Known for statutory interpretation and practical, consensus-seeking originalism (“move the ball down the field” rather than fiery dissents).
• Major issues: Union free speech rights, religious liberty (countering Employment Division v. Smith), and incremental advances for First Amendment rights.
• Approach contrasted with Scalia and Thomas (“big, audacious statements, but often in dissents” vs. “finding consensus for real decisions”).
• Alito’s long game: Religious liberty and constitutional restoration.

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8. The Dobbs Decision: Courage, Consensus, and Fallout

([41:04]-[45:31])

• Alito wrote the Dobbs opinion overturning Roe v. Wade; managed to keep majority united despite strong differences.
• Addressed the aftermath: unprecedented threats, protests at justices’ homes, lack of support from DOJ or Congress.
• “He has to write this in a way that keeps all five people on board… It takes genius and hard work, and Alito has both of those in spades.” – Mollie Hemingway ([39:49])
• Notable quote on radical response to the ruling: “If this had happened to anyone on the left, the media and other left wing organizations would have put an immediate stop to it.” – Mollie Hemingway ([44:07])
• Significant reporting about liberal justices “slow-walking” dissents, delaying the safe release of the decision.

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9. Inside Baseball: Liberal Justices, Court Strategy, and Recent Controversies

([46:14]-[52:43])

• Details Kagan’s and Breyer’s roles in delaying vital decisions, political maneuvering during redistricting cases, and internal Court strife, especially with Ketanji Brown Jackson.
• “Kagan is far and away the most political… She’s just usually justices are awful at politics… She actually is pretty good at doing it and getting a desired outcome.” – Mollie Hemingway ([47:41])
• Tension with Justice Jackson: Her reasoning and courtroom demeanor described as “confident idiot” by the panel; warnings about reputation.

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10. The Existential Stakes and Alito’s Legacy

([54:13]-[58:53])

• Alito and Thomas prioritize urgency in restoring constitutional principles, in contrast with younger justices’ slower pace.
• “Alito is the perfect model for showing that principle and pragmatism go together… this is the model going forward.” – Mollie Hemingway ([56:38])
• Both host and guest agree the Supreme Court is now the most originalist and effective for constitutional restoration it has ever been.

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Notable Quotes & Moments

• “He thinks the psychology of being a fan of a losing team gives you more resilience. He kind of wears it with pride now.” – Mollie Hemingway on Alito’s boyhood loyalty ([05:03])
• “Nobody loves New Jersey as much as Sam Alito loves New Jersey.” – Mollie Hemingway ([15:16])
• “He’s not a self promoter… it’s kind of remarkable that he does get on the court.” ([30:25])
• On the Dobbs opinion: “He has to write this in a way that keeps all five people on board… It takes genius and hard work, and Alito has both of those in spades.” ([39:49])
• “If this had happened to anyone on the left, the media and other left wing organizations would have put an immediate stop to it. And we did not see that.” ([44:07])
• “Alito is the perfect model for showing that principle and pragmatism go together, that they work quite beautifully together, and that this is the model going forward…” ([56:38])

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Key Timestamps

• [03:35] – Alito’s youth, family values, and baseball
• [12:19] – Princeton radicalism and formative college experiences
• [15:01] – Early legal career: clerkship, DOJ, US Attorney
• [19:09] – The “creedal nation” debate and Alito’s philosophy
• [24:15] – SCOTUS nomination drama and confirmation context
• [32:55] – First years’ jurisprudence, consensus-building, judicial process
• [37:07] – Alito’s strategic influence, major cases (esp. Dobbs)
• [41:04] – The leak, security threats, and slow-walking the Dobbs decision
• [47:13] – Liberal justices’ strategy: Kagan’s slow-walking in redistricting
• [49:30] – Critique of Justice Ketanji Brown Jackson
• [55:15] – Existential stakes for SCOTUS and the Constitution, Alito’s legacy

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Conclusion

This episode illuminates Justice Alito as both a principled and pragmatic anchor of the current Supreme Court, tracing his journey from humble roots to judicial influence. Mollie Hemingway’s new book and the conversation reveal Alito’s deep internal consistency, strategic acumen, and his essential role in restoring constitutional government—offering listeners both a historical portrait and a real-time account of Supreme Court drama, challenges, and enduring stakes.

Transcript

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[Molly Hemingway]

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[Matt Kittle]

Foreign. We are back with another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist and your experience Sherpa on today's quest for knowledge. As always, you can email the show at radio the federalist.com follow us on XBRLST. Make sure to subscribe wherever you download your podcast and of course to the PREM version of our website as well. Our guest today, I am delighted to say, is one of the all time great Hemingways. Molly Hemingway, the Federalist Editor in Chief, Senior Journalism Fellow at Hillsdale College, Fox News contributor. You see her there all the time and as she notes on her X account, a very smart woman, respected by everyone. Well, certainly respected by people who respect journalism, that is for sure. Molly's New York Times best selling book, Alito the Justice who Reshaped the Supreme Court and Restored the Constitution is an in depth, fascinating study of a practical originalist. As Molly notes in the book, Associate Justice Samuel Alito, thank you so much for for being with us here on this edition of the Federalist Radio Hour.

[Molly Hemingway]

Well, it's great being here. I think it's funny that I have to write a book in order to appear on the Federalist Radio Hour.

[Matt Kittle]

You have a standing invitation anytime. You know, I've said that to like three people. One of them wrote a a gushing and understandably so review of your book. And that is the great senator from Utah. And then Chip Roy. I always enjoy conversations with him. And there's one other guy, he's a, he's a congressman who is highly, highly quotable and always fun just to sit back and listen to. And of course that is Tim Burett from Red Tennessee. But again, you have a standing invitation anytime because you are doing and have done such compelling things and this book is just, just the Latest. I wanted to delve into it all. You know, we talk about Samuel Alito. Not too many people have over the years really done anything much in regards to Samuel Alito. And, and I think your book shines some light on and really gives us a chance to get to know this great legal mind.

[Molly Hemingway]

Well, that's partly why I wrote it was because so many people who I respect, some of his colleagues included, had wondered why nobody talks about him because he is so important on the court. And he definitely has less of that really loud personality that a Scalia had. But that doesn't mean that he has been less influential. And I wanted to tell that story. And it's kind of, you know, challenging when you're not dealing with like a really big personality. But he does have this big moral courage that makes a lot of people in the know respect him above all, even all the other justices. And so I'm so glad I did it. I wanted to know more about him and spending years writing this and interviewing nearly 100 people, I definitely enjoyed that process and getting to know more about him.

[Matt Kittle]

He's. He had me in your book, really, because I, I only know so much just by covering the court. I know his decisions. I know some very famous decisions that we'll get into here in just a bit. But you had me when you talked about Samuel Alito and his father and their shared love of baseball. As a long suffering Cubs fan, that immediately appealed to me. But the stories around that really give you a sense of who this man is, not just this jurist.

[Molly Hemingway]

He grows up outside of Trenton. The kids there, the boys there would always become fans of the Yankees or the Phillies. And if you're a Yankees fan, that means that you get tons of victory throughout the season, lots of penance. And if you're a Phillies fan, it means that you, like you just said, are long suffering. There are a lot of defeats. And he has later said he thinks this did shape his personality. And there's a book that says that the psychology related to being a fan of a losing team actually gives you more resilience. He kind of wears it with pride now, but he loved baseball. He and his friends growing up, his favorite toy, sort of, so to speak, was his baseball glove. He played a lot of baseball. I. There was this story that I knew before I began, which is that when he played on the doj, you know, fielded a baseball team or a softball team that played on the mall, his friends on the team would say that he would have some amazing home run and he would Just put his head down and walk around the bases or he'd have a great catch. And same thing. I interviewed someone that knew him from childhood and they said the exact same thing about him. And it just made me laugh, like, this guy hasn't changed. And he, or, you know, his classmates would say that he knew the answer to everything, but he would only give it if he were called upon in class. Giving everybody else the opportunity to get it wrong first or get it right. I don't even know how you create someone like that. Although he says he was deeply influenced by his parents and his dad was a brilliant but humble man, certainly. So I think that had a lot of influence on him as well.

[Matt Kittle]

Well, you just, you just love to hear stories of people like that, people who are in, you know, the public eye, people who have attained a great deal of celebrity but remain moored to their, their moral center. And the fact that you know so much in your book, he talks about, you know, just how those values of his parents and his family life shaped him. Did that ultimately shape his view of how to read the Constitution, how to deliver justice?

[Molly Hemingway]

He, he talks a lot about things that happened in his childhood related to his parents. They emphasized education. He was the grandson four times over of immigrants and the son of an immigrant. His dad came over when he was a baby from southern Italy and, and his parents had learned that education was this great equalizer and liberator, that with a good education you could transcend your circumstances, which had been very humble in the case of the four grandparents and two of the grandparents in particular. So his parents emphasize education. His dad has a judge like presence. He serves as a one man Congressional Research Service for the New Jersey legislature. And he took his job so seriously that his own family didn't know his politics because he had to be nonpartisan. And he also learns about the impact of court decisions from a young age because the Supreme Court held that if you created your state legislatures in the manner that the United States legislature has done, you know, where you have representation in the House, but then you have a geographic representation for the Senate, that, that was unconstitutional. So bad decision certainly, but one that you had to comply with nonetheless. And he, his dad has to redraw, single handedly redraw the congressional maps in a way that Democrats and Republicans will both sign on to.

[Matt Kittle]

Oh my goodness.

[Molly Hemingway]

And does it just like on his own with a, you know, counting machine that he, that younger Sam Alito could hear going at all hours of the night. And he also really likes order, I think because he's so shy, less likely to interject or put, put himself out there. I think he likes ordered debate. He gets into, he gets into debate society fairly early. He likes Latin, he likes literature. Just things that are less spontaneous and more about structure. And so I think all of that had a heavy influence on him as well.

[Matt Kittle]

Yeah, you note the detailed oriented young man. And man, Samuel Alito became an individual who obviously enjoyed a particular sport, but he, he also enjoyed the cerebral life. Seemed like. Am I correct in I, I don't want to misstate this, but was he kind of a book nerd?

[Molly Hemingway]

Well, he didn't just play baseball, he also ran track.

[Matt Kittle]

Oh, yes, right.

[Molly Hemingway]

He becomes the, his, the president of his class. He does a lot of different activities. He turns in a paper when he's a, you know, a teenager and his English teacher tells him that he did a good job but that he should be doing more advanced reading. And I think he views this as one of the pivotal moments of his life. Instead of going to, you know, to the Scholastic Book Fair type place to pick out a book, he starts, she, I think she gave him a list of the books they're reading at the boarding school or the elite school that he doesn't go to, you know, at the public school. And he starts encountering much richer literature, you know, James Joyce and Faulkner and, you know, people that he just has, he realizes, oh, you can operate it on a whole new level. So he does get into that. He's certainly a good Latin scholar. He's just, he's just a good student. I don't know if he didn't want to be known as just a good student. So he, or if he was just truly well balanced in all of this. And I think he, I mean, I think he was just very well balanced and athletic. I think that's actually something that people don't know about him. He's a tall, he's the tallest justice, he's imposing, he's got, he's got a, you know, he's fit, cares about fitness and always has.

[Matt Kittle]

Just like Elena Kagan. I jest. We'll talk about Elena Kagan coming up here and the, the left side of the court. But speaking of the left, on family

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[Matt Kittle]

How much did going to college in the fallout of the radical Marxist 60s movement into the 70s, how much did that influence his thinking, both just as a human being and then obviously in the practice of law?

[Molly Hemingway]

I think this is also big. He gets into Princeton by virtue of his brilliance. You know, this was an expensive school for rich kids, but he gets in. And he and the other public school kids that get in, they assume that they're going to struggle versus the boarding school kids. And they discover almost immediately, oh, that's not, that's not a problem at all. They realize that they, they have more going for them in the academic and intellectual department. But related to that, Princeton was one of the last Ivy League schools to get hit by radicalism. But it gets hit and they'd accepted women. And so there are all sorts of, like, movements happening on campus. Alito had gotten a low draft number, so he decides to join the rotc. He knows, he knows he's going to get called up, so he's like, I might as well just join the rotc. And he does that. And the protests against the ROTC are serious. I mean, they were run off of campus. It gets so bad one semester that they just cancel classes. They make going to class optional. They make taking finals optional. For someone like Sam Alito, who had worked very hard to get in and who needed an education to transcend his middle class existence, he looks at these other people and he realizes, oh, they get to play at radicalism for a few years and then they go work in their fancy jobs given to them by their parents. And it makes him respect these elites even less. And I think it might be why these elite institutions never captured him like they capture so many people that would be in his similar situation, he actually doesn't regard them as that smart or interesting or worth, like, worth caring about what their opinions are of him. He kind of thinks they're losers.

[Matt Kittle]

And so he's right, by the way.

[Molly Hemingway]

He is.

[Matt Kittle]

But, you know, you think that is a very fair and right judgment of

[Molly Hemingway]

Samuel Alita, you know, but he goes to Yale Law, Yale Law. Law doesn't capture him like it captures so many other people. And he just doesn't change in part because he respects the values of his own family more than what he saw there.

[Matt Kittle]

Yeah, yeah, no, I, I Could definitely see how that informed how he would move forward in his professional life and his legal life in particular. So he becomes pretty, pretty quickly well respected in the field of law. Take us through his early career and then ultimately his ascension to the federal court system.

[Molly Hemingway]

He probably would have liked to have gone to graduate school prior to law school. He loves big ideas and thinking that way. But he realizes that since he'll have to do his service, if he goes to get a degree in philosophy or something like that, and then law school and then does his service, it's going to take forever for him to get his life going. So he goes straight to law school, he gets out, does his service, and then clerks for a judge on the 3rd Circuit Court of Appeals, which is there in New Jersey. He had a couple offers, but he chose that one so he could be close to his. Nobody loves New Jersey as much as Sam Alito loves New Jersey. It actually kind of is humorous to me. But he realizes when he clerks on this court that he would like to be a judge someday, that that would be kind of a dream job and also maybe will never happen. He goes and works for the U.S. attorney there in New Jersey, ends up going to work in the doj. He gets hired under Carter in a non political position, but ends up working in the Reagan administration. And during that time he starts attending Federalist Society meetings. And that's how the Reagan people realized, like they didn't know because he never shares his opinion on anything or, you know, didn't talk politics. They realized he's conservative and so they bring him on to the Office of Legal Counsel. There they had to convince everybody that he was in fact with them politically because he had never worked on a campaign like most of the people do to get a job as a political in an administration. And, and just by virtue of his hard work ethic and his brilliance, people just keep noticing him. He ends up becoming U.S. attorney of New Jersey and again manages a massive office, does so well, complicated place, that's a lot of mafia cases. And you know, he handles like a big terrorism case and he just continues to be well respected. And then there's an opening back on that 3rd Circuit Court that he'd clerked on and he goes for it and gets it. And then that's when people throughout the country start realizing, oh, this guy is good. He just never fails, he never misses. He doesn't have. You know how you have like a justice you might love, but then you're like, why did they decide that like, I love justice Scalia and I hate Employment Division B. Smith, his decision limiting religious freedom for religious minorities. Or you might really like Gorsuch. And then you're like, what was Bo Stock that decision that said that the Civil Rights act is for people who are men who identify as women? I mean, just a joke of a decision. And Alito just doesn't have that. He just is consistent and does his work and then does it really quietly.

[Matt Kittle]

Well, I don't want to jump too far ahead, but here I go. I'm going to do that. Because you brought up Neil Gorsuch. Does Samuel Alito, through his legal life, does he believe that America is a creedal nation? Federalist Senior editor John Daniel Davidson wrote a very interesting piece on that, and his take on it was in the headline, Neil Gorsuch is wrong. America isn't a creedal nation. And this is what the justice said about it. Gorsuch what unites us is not a religion, it's not a race. It's a belief in those three ideals, he told a National Review online. In a recent podcast to Nick Gillespie of reason, he said, our nation is not founded on a religion. It's not based on a common culture, even, or heritage. It's based on those ideas. We're a creedal nation. How does Samuel Alito feel about that?

[Molly Hemingway]

I can't say for sure, having not inquired about this specifically, but I imagine based on everything else he's written, that he would say that the problem with the claim that we're a creedal nation isn't that we're not. It's that we're not only a creedal nation, we do have a creed. It is very important. Anyone who identifies as an originalist, and both Gorsuch and Alito do, would say that the founding documents are very important about who we are and that if you know the Constitution is the blueprint for how we govern, the Declaration is that creed that identifies us. Where I think Alito would be different than Gorsuch would be in basically for him. So there's so much more than just this autistic approach that a lot of people take. You would say, look at the Declaration. Yes, it has that, like, big phrasing right at the beginning. But what is the substance of the document? It's all about how the King violated the laws that the. That the people of the of America were subjected to, subject to, and that shared culture, the Magna Carta, the rules, the laws from England, that that is what united these people. And also the entire basis of what they were declaring independence from they were a particular people with a particular approach. And I mean that particularly when you look at the global the difference from where they were from the rest of the globe. And also Alito is he's identified himself as a practical originalist. And part of that, and there's so many different parts of that that you can pull from part of that is just that he cares more about the particulars of a case before him than making some big broad brush philosophical statement. It also means that he thinks about the ramifications on lower court judges and other agents involved in law enforcement. But even at his confirmation hearing, he talked about traditions and values and community values and how the law should not violate those. He's much more nuanced than a Scalia or Gorsuch on these things. I'd say

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[Matt Kittle]

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[Molly Hemingway]

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[Matt Kittle]

No doubt about it. And as you note in the book, he enjoys consensus where he can find it. He's not willing to sacrifice his principles for consensus, but he does a collegial court. Unfortunately, he is in the wrong place these days. We'll talk about that a little bit more in just a moment, but I want to, I want to go back and and dwell a little bit as we move into his confirmation process, into his opening days as a Supreme Court Justice. And you know how it became in a lot of regards known as the Alito Court. Our guest today, as I said before, and I think you Know it. One of the all time great Hemingway's. Molly Hemingway, Federalist Editor in Chief and she is also the author of the enlightening new book Alito the Justice who Reshaped the Supreme Court and Restored the Constitution. And here we go on that path of restoring the Constitution. I believe that's a work in progress. But I do believe that Samuel Alito in just by reading some of his key decisions can indeed be said to be in the process of, of restoring the court. Take us through though. The, the confirmation process. It wasn't quite like a Kavanaugh and you've written about that particular process, but certainly it had a radical left trying to keep him out.

[Molly Hemingway]

Well, I think the more interesting thing is to even go back prior to his nomination to that whole situation. So the Bush administration lasted two terms. They were pretty sure that they would get an opportunity to fill a Supreme Court slot almost immediately when he took office in 2001. But they make it through that entire first term without anyone retiring. Rehnquist had served a long time. Chief Justice William Rehnquist had served a long time. By that point. He was dealing with very serious cancer. He'd taken a lot of time off of the benchmark. They were just assuming he would be retiring no later than the end of the term in 2005. So they just got ready to appoint or to pick someone to be a Chief justice to replace him. And Alito was on the short list then, as was. It was just kind of like shocking what a bullet was dodged here. Mike Ludig, who's the seemingly unhinged person who never was able to psychologically deal with his failure to get that slot and has just gone off the deep end.

[Matt Kittle]

Yes, thank you neo cons for that, by the way.

[Molly Hemingway]

Well, he really, he was kind of considered the, the good conservative pick by many people who you would probably respect. I have no idea really what happened there. And they're all embarrassed that they ever thought he would be consistent. But anyway, Alito was on that list. Chief Justice John Roberts was on that list. Instead of the Chief Justice Rehnquist retiring, it's Sandra Day o'. Connor. And the Bush admin was very focused on identity politics. So they were like, we should probably pick a woman. But, but we've already done this, so we'll just pick Roberts and we'll, if we get another opening, we'll, we'll pick a woman for that. So they pick Roberts right before he's ready for his nomination hearings. Rehnquist dies. So they decide to pull his nomination for the o' Connor slot and make him the nominee for the chief. He goes flying through. I thought that was interesting because there were some people who raised alarm bells at the time. He ends up being, I would say, pretty good, but a disappointment. But if you look at his track record prior to being on the court, nobody should have been surprised. Barnett wrote a piece at that time that said, like, who is this guy? We don't know anything about him. He's definitely played the political game well to get nominated, but we don't know what he thinks about anything. Okay, so that goes through and then they're like, we have to pick a woman. But most of the women were too conservative for the Bush team. So they. They didn't like how conservative many of these women were, or they'd been caught up in Democrats filibusters. So they hadn't had enough time on a court to be nominated. So they end up picking Harriet Myers, who's simply like a Texas lawyer who served as counsel for the White House. And the conservative movement loses its mind. Remember, we did not put you in office. We put up with a lot of stuff from you. We're not going to put up with this. And so major rebellion. You mentioned Chip Roy earlier. Major rebellion that he was a part of. They're in the Senate, and as a staffer, they kind of let it be known we're not going to tolerate this. And Harriet Myers herself doesn't do very well in the interviews because she's not a constitutional lawyer. And so she ends up pulling her nomination. And usually when you have to pull a nomination, that means that you get a weaker person next. So a great example would be when Reagan nominated Bork, and that didn't work out. He then nominates Anthony Kennedy. Yes, so much weaker than a bor. But in this case, because the rebellion had happened from the base of the party, Bush all of a sudden had to assuage the base. And he realized that his particular obsession with identity politics was not shared by the base. They actually just wanted to do it solely on merit and quality. So he's kind of forced into picking Alito. And because there's a majority of Republicans on the. In the Senate, they don't really worry about his nomination so much, except insofar as he might have to fight a filibuster, which at the time, they still had the Supreme Court filibuster. And John Kerry does, at the end of the process, call for a filibuster, but he called for it from his, like, private plane in DAVOS Switzerland. And so everybody just kind of laughed and said let's ignore him.

[Matt Kittle]

Yes, well, you know, the joke about John Kerry has always been why the long face, John? Oh, I'm sorry you were born, born that way. But yeah, that sounds about right to me. John Kerry trying to force a filibuster from his jet plane and he's talking about climate change somewhere. So the battle is not really internal. And Molly, this to me speaks of a time where the base is really beginning to turn. And I think that's fascinating what you mentioned about how they rejected the kinder, general, gentler conservatism of the, the son of the, the guy who, who coined that phrase and the identity politics that were in play. I think those were the really some of the roots of what we would find to be the Republican revolution, so to speak, in, in 2010. Of course it took an Obama to really get there, but. So Alito is well respected throughout his legal career and now he's well respected by the people who want to see him serve on the U. S. Supreme Court.

[Molly Hemingway]

Yeah, people just, people just noticed him. One of the things that I learned through the Kavanaugh book was how much people campaign for a Supreme Court slot. And that is with a few exceptions. I mean, in fact, enough exceptions to mean. It's just, I just never really thought about the campaigns for these slots. They have teams of people who want particular candidates to be considered. Alita was not a campaigner. Thomas not a campaigner. I'd actually say Amy Coney Barrett, also not a campaigner. But a lot of these people have these active clerk networks that are lobbying for people. And that's not a bad thing necessarily. It's how do you know that people are good or if they haven't, if you don't have a good handle on their previous work and all that. But Alito, it's kind of remarkable that he does get on the court because he's not a self promoter and people, if he's known for anything it's not, it's for. Not self promoting. But he does make it on there. And I have in the book that thing that Justice Scalia tells him of the first five years you're here you will wonder how you got here and then the rest of the time you'll wonder how anyone else got here. And it is true that there's a variety in quality of justices.

[Matt Kittle]

Oh yes, particularly these days. What we saw on the three, the three liberals, of course I, I quickly point to and, and some disappointing conservatives as well. But Let us talk about that time on the Supreme Court again. You describe Samuel Alito as, you know, someone who is, you know, very studied about how to make a ruling, how to put together a ruling and how to, you know, stand on a decision. Very practical. So what's the first case that you see where that really is coming to the fore?

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[Molly Hemingway]

I am not sure about the first case, but, you know, going through his jurisprudence, one of the things that strikes me is how so many of the cases that hit the Supreme Court are statutory, not constitutional. And there are certain justices that are better at statutory reading interpretation than constitutional and vice versa. Ruth Bader Ginsburg was highly regarded by her peers for her statutory interpretation. She ends up not having much influence because of the nature of the court. She's on a court where Anthony Kennedy has the influence for almost the entirety of the time that she's there.

[Matt Kittle]

Speaking of a campaigner. Right. That guy really campaigned for that position?

[Molly Hemingway]

I think so, yeah. And but I think that if you look at, okay, there are a few different, like, streams of cases, one would deal with union unions and the First Amendment rights of workers. So one of the ways that unions have had so much power is that they take money from the employees, even if the employees are not in the unions, and then they use those funds to advocate for particular political causes. And it was during much of the time that Alito has been on the court that had been an issue. And he didn't have the other justices like totally with him. But he would figure out a way to get five of them together on some grounds to move the ball down the field in some direction.

[Matt Kittle]

Yes.

[Molly Hemingway]

And I put this in comparison to a Scalia or a Thomas we love. I say we, I guess people there might be people out there who don't love Scalia or Thomas. They're wrong, by the way. But people love Scalia and Thomas because they take these really big, bold, audacious positions and they write very clearly and punchily. And, you know, Know, sometimes viciously, and people love that. But you'll notice that they're usually writing dissents or concurrences where you don't have to get a majority of people with you to say what you're going to say. Right. Alito is more concerned about did we move the ball down the field, did we get in a better place than we were when we started? And that might mean that you have to include viewpoints that you don't, that you wouldn't have included if you were writing a solo thing. Or you have to figure out a way to keep two people with you who have dramatically different views of the underlying statute. So you have to write in a way that is a big enough umbrella to keep them both in without angering them and getting one of them out. So he's just more practical that way. And the Union free speech rights is one example of that. But so is religious freedom. This is one of the big motivating issues for Alito, and it was since before he got on the Supreme Court, Scalia does that Employment Division v. Smith decision. And Alito is trying to find ways to protect religious minorities rights even on the lower court when he gets on the main court. I think it's been a project of his to improve the situation that was wrought under Employment Division v. Smith and to just work steadily to increase the religious rights of institutions and how they run themselves.

[Matt Kittle]

Yeah. And that really is, I mean, he's playing the long term game here. He's playing the move, as is in the title of your book, the Restoration of the Constitution, the Restoration of Primary First Rights. And you see that at just about every turn. At the same time, he realizes that there are different philosophies and different ideas, ideologies on this court. So how is he able to move that ball forward? Is it because of his reasoning, his consensus building, his practical nature?

[Molly Hemingway]

So I think there are a few Justices who are truly strategic in their thinking. And I would put, by the way, Elena Kagan as one of those Justices. She thinks through how to. She knows she's in the minority, but she's thinking how can I get the best possible scenario for. For what I care about? Justice Thomas is also very strategic in a way that Scalia was not. His bold pronouncements about where the law should be understood. He does that as part of a strategy that works very well. If you have an Alito on the Court to move things in that direction you want them to be. But Alito is also very strategic and I think it's interesting that the left picked up on this long before the right did. And so it's all sorts of things, Matt. It's deciding which cases are going to come before the court and when, knowing enough about the way your fellow justices feel about given issues to know if the particular facts of a given case will mean that they will want to grant cert on that case, hear that case, and then working with that case as it works its way through, you know, through briefing and oral argument, and conferen to narrow the grounds on which you make that decision in the best possible way. And then if you are assigned the opinion, and that's something that you don't totally control, right. The senior most justice assigns the opinion. So if that includes Chief Justice Roberts, the Chief justice always has seniority. But if it doesn't include, then it goes to Thomas or I guess it would go to Alito after that. And if you are assigned the opinion again thinking about how to be generous with that opinion, Alito's most famous landmark decision will be for all time the Dobbs decision that overturned Roe v. Wade. And for that it took courage, took an immense amount of courage for each of the Justices to sign on to that because I don't know if they truly understood how much their lives would be threatened as they were by the end, but they knew it was going to be fierce and that previous Justices had not been able to withstand the pressure. So he has to write this in a way that keeps all five people on board, even if they have particular and opposing views. You know, Clarence Thomas has a very particular view of the 14th Amendment and how right should be applied from there. And Kavanaugh has pretty much the opposite view. So how do you write it in a way that holds everybody together? And it's just, it takes, it takes genius and hard work. And Alito has both of those in

[Matt Kittle]

spades, no doubt about it. I think when that Dobbs decision came down, of course, by the time it came down, there was a leak. And so we had a pretty good idea where this thing was going and we knew what was happening because the left was, as it has been doing for a very long time in this country, losing its collective mind, much of it by design. And of course we saw all kinds of attacks on religious organizations and pro life organizations. Of course, at the time we had a, we had the auto pen president and they were doing nothing about all of that. But you know, all of this stuff is not happening in a bubble and you actually end up, you, you tell us a lot of Stuff that we don't know about Samuel Alito, but you break some, some pretty big news in and that is the foot dragging that is going on from a particular liberal justice. Let's kind of walk through the timing of all of this and why it was so very dangerous.

[Molly Hemingway]

I had wanted to write about Justice Alito before he authored the Dobbs opinion and before the leak. But by the time those things happened, I knew that I had to write that story down about what had happened. We look at, if I can just like back my way into this, you look at what happened with the most recent assassination attempt on President Trump. And one of my colleagues at Fox had said, if President Obama had had three, you know, legitimate near misses assassination attempts, the Democrats would have outlawed the Republican Party by now. Now, yeah, and there's something that people have like internalized about being second class citizens on the right that just blows me away. But the level of violence that happened in following the Dobbs decision is shocking. So I tell the whole story. How did the Dobbs case make its way to the Supreme Court? How do they grant cert? How do they end up with their oral arguments and how do those go? And then what is the conference like after that? That's where the nine justices meet in private. How, how quickly Alito gets this monster decision out. How it devastates the liberal justices because it is it like it leaves no stone unturned. It makes it difficult to figure out, like, what are we even gonna say? Because they also had the disadvantage of nobody thinking Roe was good law. Like, no, literally nobody with a brain thinks that was a good decision for almost 50 years. Yeah, you don't have to be pro life or conservative to think it was bad. Just everybody did so. But they, but the majority is done and everybod signed on to by the middle of February, so they're ready to go. But a decision normally isn't released until you have the dissent. So it gets leaked. The draft decision gets leaked. They know about it by the end of April. I think it's early May when it comes out. And immediately there are firebombings of churches and pregnancy centers. There are daily protests at the homes of the justices whose addresses have been posted online for the purpose of breaking the law. Law. Like it's against the law to protest a judge or justice with the idea that you're going to change their mind. That was the only reason these protests were happening. And yet the DOJ did nothing. Congress did next to nothing. The president supported the protests. His press secretary said, we think they should continue in the way that they've been going, which they described as peaceful. They weren't. And they were against the law again. And it gets so bad that they arrest an attempted assassin at the Kavanaugh home where he lives with his wife and children. Other justices don't just live with their spouses, they live with their children. They had to put on bulletproof vests. They had to be moved to secure locations. If this had happened to anyone on the left, the media and other left wing organizations would have put an immediate stop to it.

[Matt Kittle]

Yes.

[Molly Hemingway]

And we did not see that.

[Matt Kittle]

Right.

[Molly Hemingway]

Yeah. So the next time they meet in conference, Alito asks when they are going to have their dissent done. Because every day that it goes on is another day with attacks on their lives. And they demur. They don't really say what their plan is. I think it was Gorsuch asks for a date that they'll be done. They don't want to give a date. And then after that conference, Elena Kagan goes to Justice Breyer's chambers and screams at him to not accommodate his friends who are conservative on the court because she knew he was the most likely to accommodate them because he's a sort of a gentleman. Was a gentleman on the court and they all loved him. And then they finally get the decision out in June. I'm sorry. They finally get the dissent done in June, but they include this completely gratuitous and unnecessary footnote to another decision that is legitimately still being worked on by both sides, knowing that they can't mention the outcome of a decision that hasn't been released yet. So it delays it another three plus weeks and during that time is when Kavanaugh and his kids are nearly killed filled.

[Matt Kittle]

This is horrible.

[Molly Hemingway]

Horrible.

[Matt Kittle]

And we, you know, we see obviously the, the impact of that and it's still resonating to this day. But it's unconscionable to me. What has anybody save on family essentials

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[Matt Kittle]

Here's the problem. I see Molly Just like so many other things. The Federalist, you and the Federalists are reporting on this stuff. Stuff, this is big news. But of course the New York Times and the Washington Post and the usual suspects in the accomplice media, they don't want to talk about that. So it's their big sin of omission, just like so many other things. But I mean this, this is unconscionable by this left wing of the court. How is nobody saying, bringing that up and saying, aren't there repercussions for something like that, that.

[Molly Hemingway]

So I think we know why they don't talk about it, which is that they are playing a political game and it would not help them politically to reveal how political the liberal justices are being. And so I was just fascinated right before my book comes out, or right at the same time my book comes out, there's reporting that the liberal justices were slow walking the Kalai Kalay.

[Matt Kittle]

Yeah, Louisiana. I was going to ask you about that. Louisiana versus Calais. And you know, that is this critical decision that just came out about redistricting and redistricting based on race. And now we hear that Kagan is slow walking this decision.

[Molly Hemingway]

And I think that's, that's like been all but decisively proven. So after my book comes out and after this reporting that she's slow walking, hoping to drag it out to the end of the term because if she does, then and legislatures won't have time to redraw their maps and if they don't have time, that will help Democrats, her party. And Kagan is far and away the most political. I don't even mean that in a bad way necessarily. She's, she comes from more like a Democrat political world and knows how to play politics. She's just usually justices are awful at politics. Like they think they're good and they're all awful. She actually is pretty good about doing it and getting a desired outcome. But, but after this reporting comes out, they do finally release the decision and you know, they have the dissent. I can't help but wonder what the reporting had to do with getting it out. And then you see more slow walking, right. The decision comes out, the left is outraged that they won't be able to artificially manufacture these racist gerrymanders and they're losing their minds. And so then they try to appeal various aspects back to the court. The three liberal justices, two of them are much more savvy than the third. Ketanji Brown. Jackson basically throws a hissy fit that the other two were smart enough not to throw. But because she throws the hissy fit that is completely ungrounded by law or reality, it gives Justice Alito the opportunity to include a footnote saying, we conferenced this back in October.

[Matt Kittle]

Interesting.

[Molly Hemingway]

And the point being, y' all slow walked this, and it's worse than October. They actually first heard the case the previous March, and then they had to rehear it in October. So they've had nothing but time on this. And I think it does confirm that, reporting for it for the. For this case, that they were slow walking.

[Matt Kittle]

Now, speaking of Ketanji Brown Jackson, the birthright, citizenship, the thing that immediately comes to mind is her idiot, idiotic idea of allegiance to a government. Her whole story about, well, if I were in France and I robbed someone, I took their wallet, I would have allegiance to France because I would be involved in the legal system, which of course, everybody panned as stupid because it was Alito actually recently has. I think he's had enough. And. And he speaks about Ketanji Brown Jackson in ways that are, in some ways, it seems to me, a little un Alito, like that he is actually saying these things in. In public. What do you think about all of that?

[Molly Hemingway]

I don't know. I actually assume. I don't. I'm speaking a little bit speculatively here, but I assume he'd had enough of her long ago. What I find more interesting is that Kagan and Sotomayor and Kavanaugh seemed to have had enough of her. These are people. I mean, either they're people on her same quote, unquote side, or they're people who are just known for going out of their way to be forbearing and nice. And she's really not at the same caliber of the other justices. I imagine it's particularly painful for Kagan, who is respected by her colleagues. Her legal reasoning is respected. They don't agree with her, but they. They consider her a worthy opponent. And Jackson, I was at that birthplace, citizenship, oral argument for all three hours of it. And I remember that Jackson's questions at first seemed pretty good. I assume she worked on them or her clerks helped her with them. But then she comes up with that idea that if she steals a wallet in Japan, that makes her a Japanese

[Matt Kittle]

citizen or someone, something, the turning Japanese, I really think so defense.

[Molly Hemingway]

So I've described it, and what struck me about that is that I got the impression she thought it was a good question. She kind of leans back in her chair and kind of does that smirk like, I got them now. And everybody else is looking like this can't be real, that this woman is on the court by comparison. I would just like to point out that again, Kagan, but also especially Alito are very good at oral argument. The purpose isn't to show yourself off or to have something. The Washington Post goes as they do every time Katanji Brown Jackson speaks. Oh, my goodness, she is the best, she is the smartest. We don't deserve her or, you know, whatever the Washington Post says, the point is to narrow the argument to the place where you want, want it decided upon.

[Matt Kittle]

Yes.

[Molly Hemingway]

And Alito is brilliant at that. And he's also masterful at asking a series of hypothetical questions that they're obliged to answer. And he's, they started, he, they start out so easy to answer and then by the end, he has completely destroyed the advocate's argument.

[Matt Kittle]

It was, and he's done it many, many times. But the birthright citizenship case I think really showed how he can tear apart any argument. But certainly the argument of. Who is it? Catherine o', Hara, the late, great Catherine o' Hara who, you know, I loved from the beginning of Second City Television when I was a kid. She said she always loved playing the role of the confident idiot because they, they were the funniest. And that's what I quite frankly see in Justice Ketanji Brown Jackson. She is playing the role of the confident idiot on this court. And I, the justices, all of them have said that's, that's, that's a bit too much for us. Okay.

[Molly Hemingway]

And Matt, I do want to say, I do think that she could do well to not listen to the Washington Post and other left wing outlets and their praise. And she's not, she's not a dumb woman per se. You can't be dumb and reach the heights that she has reached. She has a good education in many ways. And if she were to spend a couple years just maybe observing who's most persuasive on the court and then emulate them, it might serve her well. She's there for her whole lifetime. So I would just say I would encourage her to, to think about how her reputation is forming and, and whether it's going in the right direction. I don't know. It might sound silly to even make that suggestion.

[Matt Kittle]

No, I, I think you're right. I think she, like so many intelligent people or people who have a good deal of intelligence on the, seduced by critical theory. And Katanji Brown Jackson looks at justice through the prism of social justice and equity and all of these sorts of things of course that rip apart the Constitution, which gets us to really the core of your book and the core of this man, Justice Samuel Alito. He is playing the longer game game. And the longer game is existential. And so my final question to you is, where do you see this justice going and this court moving forward, knowing as I believe Samuel Alito does, I, and I know that Clarence Thomas does that, that we are in an existential struggle in this, this republic.

[Molly Hemingway]

I think, I think I might disagree with a lot of people on the right right now in how I view this as far and away the best court we've had in history. It is a majority originalist court. They are doing good work. I'm not in any way praising everything. The big divides you see among the originalists right now are on pacing issues. And Thomas and Alito who've been there know 35 and 20 years respectively. They understand that you're not always going to have an originalist majority on the court and that you have to act now for what needs to be done. And also they tend to think that injustice should be solved immediately, that people suffer under injustice, and so it should be corrected as soon as you're able to do it. The younger justices, and it's worth remembering, like all three Trump justices were with that Dobbs decision, without those people, you wouldn't have had the overturning of Roe, like, have some perspective here. But they tend to think they've got much more time. I mean, they do have more time, assuming all things are equal and they're more cavalier or casual about the pacing. And that's probably not, that's probably something they could think about a little bit more, too, and understand the perspective of their, their, their more experienced peers. But then more largely, I think that we as a country, and then the conservative movement have had some struggles with understanding how to balance principle and pragmatism. And we have so many heroes that, that are heroes, like, mostly for the principle. And you've had a huge rebellion among people saying they kind of don't care about principle anymore, they just want to wear. And I think Alito is the perfect model for showing that principle and pragmatism go together, that they work quite beautifully together, and that this is the model going forward, that these two sides are not in conflict but do better together. And I think that you'll see that not just in the conservative legal movement, but in the conservative movement and beyond that as well.

[Matt Kittle]

I think that's why I so enjoyed this book, because it is, first and foremost, it's opening the curtain, a man who, you know, has not been part of the big public spotlight. When we talk about the Supreme Court, I think this book opens that door and I think opens that interest. But at the end of the day, you have a man, you have a justice who understands that at 250 years now, we're celebrating in July of this nation and a little bit shorter than that of this republic through a constitution. There have been a lot of things that have happened, a lot of things that has shaken, you know, this, this constitution and this republic, but it endures. But for it to endure, you do have to play the long game. And I think it's exactly what you just said. What I got to learn about a gentleman introduced to me who, who does not give away his principles but understands how to be practical in the pursuit of justice and the pursuit of restoring the Constitution. I understand why it is a Washington, a New York Times bestseller, even if New York Times doesn't want it to be. Here we are. So congratulations. It's a wonderful book.

[Molly Hemingway]

Well, thank you very much, Matt. And it was great talking to you.

[Matt Kittle]

Absolutely. And you know, you still have a standing invitation. Maybe we'll, we'll bring, bring you in with Chip and, and Mike and, and maybe Tim and we'll, we'll, we'll talk about some things. I think that would be a fascinating conversation.

[Molly Hemingway]

Oh, I would love that.

[Matt Kittle]

Y indeed. Thanks to my guest today, Molly Hemingway, the Federalist editor in chief and author of the bestselling new book Alito, the Justice who Reshaped the Supreme Court and Restored the Constitution. You've been listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist. We'll be back soon with more. Until then, stay lovers of freedom and anxious for the fray.

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[Molly Hemingway]

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