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Federalist Radio Hour
’You're Wrong' With Mollie Hemingway And David Harsanyi, Ep. 196: Mollie’s New Book ‘Alito’
01:03:20
Federalist Editor-In-Chief Mollie Hemingway joins Washington Examiner Senior Writer David Harsanyi to give the inside scoop on her newest...
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Welcome back, everyone, to a new episode of youf're Wrong with Molly Hemingway, editor in chief of the Federalist, and David Harsanyi, senior writer at the Washington Examiner. Just as a reminder, if you'd like to email the show, please do so at radio@the federalist.com Molly we have another special episode this week. Your book's out. It's called Alito, the Justice who Reshaped the Supreme Court and Restored the Constitution. Congratulations. It's a fantastic book.
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A
Thank you very much.
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B
I look forward to diving into it right now. And I guess I just want to start by asking you why Alito People love Clarence Thomas. People. You know, there are other, there are other justices, I think, within the conservative movement at least, that are that are often are quite beloved or and have been for a long time. Why Alito?
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A
So I've always had a pretty serious interest in the Supreme Court. I'm one of those people who likes to read opinions and dissents when a big case comes down. I've always been someone who wanted to go to law school. That's not happening, particularly after this book, and I'll explain why in a second. But I just enjoy the court. I enjoy the branches of government and studying them. But it was during the writing of the Kavanaugh book I co wrote with Kerry Severino, justice on Trial, which was about the confirmation of Brett Kavanaugh and the future of the Supreme Court. We interviewed close to 100 people, some of them multiple times, many of them justices. And that was the period of time where I realized, oh, wait, we always talk about Scalia. We always talk about Thomas. And I do love, I really love Thomas. But there's this giant on the court that literally nobody talks about. He's unlike all of his colleagues. He's extremely introverted. He's extremely averse to publicity or celebrity status. And his colleagues were all taught, you know, when we would talk to his colleagues, they would all say, Alito's the brilliant one. Alito's the one people should be paying more attention to. And so I knew right away that I wanted to write about him. It was also because of this, when Carrie and I were getting ready to write that book, which we did in a very short period of time. Carrie Severino is brilliant, awesome Harvard Law grad, former Thomas Clerk. She knows everything about the court. But I was just one of these outsiders who had interest in the court. So I had to read a ton of books about the history of the court, also about the current state of the court. And there was tons of material about everybody except for Alito. There was one chapter in one very good book called Supreme Conflict that was about Alito and that had been published in like 2007, so a year after he was on the court. So that only confirmed for me, this man needs to be written about. And finally now we have my book out about it. And I would have said there are no books about him at all, but there's another book out this month about him from a more left leaning journalist. And then he himself has a book coming out in the fall. So I wanted to explain, particularly to center and center right audiences, the significance of Alito, explain more about him and explain how he's a good model going forward for people who care about the country in terms of both philosophy and practice.
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B
I am a big fan of biographies and I, I admit I knew nothing about Alito's childhood or anything of that nature. So I did love his story, which is in many ways a prototypical story of an Italian background here in the United States. I think you wrote all four of his grandparents, I think, were immigrants. And his father, he grew up outside Trenton. Just the story you read about a lot of immigrant families who really excel in their second third generations. Right.
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Well, it is an interesting story. I think even more than the immigration issues which are key to him, he cares deeply about the hard work put in by his parents and his grandparents for him to have a better life than they did. He knew that it was important for him to excel in his studies and go to college and all that. But he's in this first part of the baby boom. So when his family moves from Trenton to outside of Trenton, they're in this very middle class neighborhood. You know, some of the people went to college, but a lot of them didn't. You have, you have Italians, you have Poles and Irish and Jews, and everyone's like playing baseball together. And the city seems to be on the rise, the country seems to be on the rise. And then he also witnesses later in his youth a great deal of disruption. You know, people tearing down Institutions, crime, hitting cities. And when he went to it, he did his undergraduate work at Princeton, and for his senior thesis, he goes to Italy to study the Italian Supreme Court. That was kind of new there. And he was struck by how clean and safe the cities of Italy were compared to Philadelphia and New York. And so I think that is also at issue in who he is. He's someone who's seen American greatness, sees how it can be willfully destroyed, how you can increase racial tensions or harm the family unit, and how that has really serious effects. And he is unafraid to say he's opposed to these things.
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B
So the two things that struck me and that seemed to have had a great influence on his thinking are Catholicism and coming of age in the late 60s and maybe even early 70s when he was later in school. So he is not part of, and this is a question, he is not, it seems to me, part of, like the Federalist Society movement. He comes from a different kind of background. Is that fair to say about him? He almost predates that, his development.
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A
So I would say yes and no. All of the justices, contrary to what you hear, are fiercely independent thinkers. I always think of this thing Chief Justice Rehnquist said before he was Chief justice, where he said something like, we're as independent as hogs on ice. You know, everyone's doing their own thing. And he's, you know, he's. He doesn't fit the mold in some ways, but then he does in other ways. So Alito is heavily shaped by his father. And his father was someone who he immigrated when he was a baby. Interestingly enough, a little sidebar. When he was, when Justice Alito was going through his confirmation hearings, he'd been falsely accused of lying about his father being an immigrant. After he became justice, the Italian ambassador or whatever brought the birth certificate for his father from the rural region that he had been born in. And it was very vindicating that he was in fact correct that he had been born in Italy. He was very influenced by his father, who also was a brilliant man, very studious, had served in World War II, had been an educator, and then went to work in a bipartisan fashion for the New Jersey legislature. One of these formative memories for Justice Alito is that his dad had to basically single handedly prepare the redistricting of New Jersey following a Supreme Court ruling that mandated that the way that New Jersey and some other states had handled their legislature apportionment was unconstitutional. So New Jersey had done it In a very U.S. congress kind of way. They had a House that had representation in an evenly distributed manner, but then their Senate was just by county. Justice Alito's dad has, this is like well before AI, well before computers can help, has to personally prepare the redistricting to be voted on at a state constitutional convention. And he does it in a way that both Democrats and Republicans praise. He does not know what his father's politics are because his father took his job so seriously. But he sees early on how the Supreme Court can affect people on a day to day basis. Then he gets hugely into debate. And at that time, and to some extent, you know, we still do this in debate world, they would just work on one issue in a given year. And so I don't remember what year it was in high school, but they're looking at evidentiary rules and how they're derived from the Constitution. And so again, he sees how the Constitution can affect things related to investigation of crimes and how you procure evidence. And when he gets, by the time he gets to Princeton, he's getting more and more interested in the courts. He's super influenced by Alexander Bickle, who is this Yale law professor who had been a clerk of Frankfurter's, I believe, and had advocated for judicial restraint, which, it's funny, judicial restraint sometimes seems like it's a thing of the left and sometimes it seems like it's a thing of the right. So if you remember when FDR was trying to shove through all of his New Deal stuff and the Supreme Court was finding some of it unconstitutional, this really took root where people say the justices should be more restrained and just let Congress do what it wants to do. Now then by the time FDR had replaced every single member on the Supreme Court, then judicial restraint was kind of out. But Frankfurter was one of those justices who was consistent about it. He just believed in it faithfully. And Alexander Bickle had been a great influence. It's partly why Justice Alito goes to Yale, although by the time he goes to Yale Law, Bickle is ill and unable to teach. But sorry for all this, like long story here, but and I get, you know, I talk about this and what, what his friends and professors thought about this in the book Alito. But he does go into a life of public service. And to some extent you can say that's different than the Federalist Society in other ways. It's not different at all. He's a career, you know, he graduates law school, he clerks for a Judge on the 3rd Circuit, he works at the U.S. attorney's office in New Jersey. Then he applies for and is hired by the Carter under. Under Carter to work as a career servant in the Department of Justice. And this is where the Federalist Society, I think, comes into play, because he is a conservative thinker. He is interested in judicial philosophies. And he starts showing up at Federalist Society meetings, which had just gone off, you know, just kind of taken off under the Reagan administration. While he's there, one of the Reagan appointees in. In the Department of Justice sees him there and says something like, oh, this is like, you know, meeting someone in a brothel. Like, now I know what you really think, right, because he thought he was just a career employee. But if you're showing up at Federalist Society, it means you actually are thinking deeper on these things. So that's when they start pulling him into more political work at the office, legal counsel in the Department of Justice. And from there, then he becomes a Reagan appointee as U.S. attorney in New Jersey. But this is a man whose entire career history, entire, like, with the exception of a few months before he clerked for the judge in New Jersey, has been in public service. This is a man who could make $10 million a year given his mind and his abilities outside, like not being a judge or justice. And he chose public service. I'm impressed about that. Not just for him, but the other justices as well. Almost without exception, and maybe even without exception, they all could be making a lot more money and having, you know, influence, not the influence they have now if they were to leave public service. And for the conservative justices whose lives are routinely threatened, I think that's a remarkable thing.
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B
The. If I remember correctly, one of his yearbook entries, he says that he's. He shall be one day warming the seat of the Supreme Court. But I think you say it was a joke.
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It's. It's sort of like half a joke. He, of course, understood that he was. That he had special abilities, special gifts, and was keen to use them. But he is a baseball obsessive. So his real goal was to become a Major League Baseball commissioner. And he loved playing baseball. He loved studying baseball. He does to this day. If you go to his chambers, you'll see that he has a whole corner just filled with baseball paraphernalia. It's not all sunshine and rainbows.
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podcast with Chris Murkowski on Apple, Spotify or wherever you get your podcast. One of the interest I'm going to jump around a little here just because things pop into my head, but this I I was surprised and maybe the coverage of him or the way he seems sometimes in dissent, you would not think that he has the disposition he does in the sense that he is introverted. He gives nervous. You know, you were talking about the interviews he gave. He's quite nervous giving interviews. When he was up for potentially for the court. Were you surprised by that? Did I mean.
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Well, again, it's this interesting thing that I think relates to debate. He and Latin. He studied Latin. He studied debate. He was very good at them. Frequently a leader in those fields. I think he enjoys communicating when the rules are clear and he can truly understand how to operate within those rules. And so he is widely considered the best questioner on the court during oral argument. And that doesn't mean that the questions he asks are going to be the ones that the Washington Post say, you go, girl. It means that he asks questions that get at the heart of the issue and that influence the other justices about what they should be focusing on. Or he's really good at asking questions that trip up people. People have their favorite stories that they would always tell. When I was interviewing people for this book, they would have favorite oral arguments where he tripped people up. There was a case out of Minnesota where they were forbidding people from wearing certain shirts to vote. Alito asks the advocate for Minnesota what the boundaries are of this rule, and he asks, would they be allowed to wear a shirt with the Second Amendment on it? And they say no, particularly if there was something on the ballot about that. He asks all these different examples and he's finally like, would they be allowed to wear a shirt with the First Amendment written on it? The court erupts in laughter. I can't remember who wrote the final opinion. I think it was Roberts. Extensively quote or extensively bases the opinion on those questions. So he's really good at that type of thing, as he did during debate, though he would sometimes get points marked off for showing too much with his face. And this has gotten him into trouble. I mean, most famously when President Obama, even liberals admit this, lied about the effects of a particular ruling at a State of the Union speech, Alito just quietly mouths, that's not true. The cameras were on him. It becomes a big issue. Oh, how dare he mouth the words that's not true. When Obama lied about something. So it becomes like a big thing. I don't even know if he's been to a State of the Union since, which many of the justices just view it as a clown show and not worthy of their time or attention, or. I think he rolled his eyes at Ruth Bader Ginsburg once. Oh, my goodness, did the media hate this? You know, they did the opposite of roll their eyes. They would be like, did you hear what Ruth Bader Ginsburg's workout routine was? Oh, dear, she's the best ever. And he rolled his eyes or looked up at the ceiling and in exhausted by whatever was going on. And they. They hated that. So he sometimes has that issue going on. But more than anything, I think the thing people don't know, and I try to tell examples of this in the book, is he's got a wickedly dry sense of humor, but mostly shared with the people he knows. He's not interested in going out on stage and sharing that wit and humor with everybody.
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That moment with Obama was about Citizens United in the first Amendment. And I think it was an incredibly important moment, actually, in American history. That, first of all, one of the few moments where in a State of the Union, the president actually attacked the court, might have been the first time. And I think his reaction was wholly normal, you know, or expect or should have been expected. Let's talk a little bit about the nomination process he went through. And am I right in saying he was passed over probably twice, or he was in the running two times before he finally got on the court.
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So if you remember back to the George W. Bush administration, the Supreme Court actually had been in a big issue in that first election. There were beliefs that you would have at least a couple of appointments if you became president in 2000. So the Bush team kind of hits the ground running right away, assuming that the aging Chief justice, William Rehnquist, is going to retire, and they start preparing names, and right away, Alito would be one of those names that's mentioned. So he takes interviews early. He visits the vice president. He's being talked to by the doj. They actually try to hire him to run the FBI. And he wisely says that that does not sound like a good idea. He knows how ungovernable the FBI is. If you're not a former FBI person, yourself. But that entire first term goes without a single retirement. By the way, Rehnquist was dying from cancer by the end of the first term. Do you remember when Bush was inaugurated for his second term? Rehnquist would had, like, a tracheotomy and he had, like, a scarf on. And Karl Rove describes him as looking like, you know, death warmed over.
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But he.
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He does do the oath for President Bush. So they're like, certainly the man is going to retire at the end of this term. So they really ramp it up. So the Bushies, and I think Karl Rove in particular, had really wanted Alberto Gonzalez to be considered. They really wanted to play identity politics for their first pick. The problem was that Gonzalez literally didn't even know what it meant to be a conservative judicial person and wasn't trying to be. And so movement people just put the kibosh on Gonzalez. They also really liked Roberts right away. And Roberts is one of these people who everyone kind of quote, unquote, knew that he was a conservative. He'd worked for Reagan. He'd been his. You know, I think George H.W. tried to nominate him to the D.C. circuit. George W. Bush nominated him. And it went through all of that filibustering. I mean, there were a lot of Republicans who really thought this guy was going to be super, super impressive. I'll do a little segue here to say that when he was nominated, when Roberts was nominated, Randy Barnett wrote a piece called who I think was for the Washington Post that was like, who is John Roberts? And it was all about how John Roberts had never staked out a position on anything and defended it. He'd never explained his judicial philosophy. You'll remember that when he was going through confirmation hearings, he said he didn't really believe in having a judicial philosophy. And he was like, maybe that's bad. Randy Barnett originally wanted to title the piece not who is John Roberts? But who the bleep is John Roberts. He did not think it was impressive that he hadn't done the hard work. But Roberts was really well liked. So was Harvey Wilkinson. Michael Ludig at the time was someone who, you know, somewhat interestingly, was considered a stalwart. They thought he would be Scalia. Like, they were worried about the fact that he didn't get along with anyone, and particularly, you know, Wilkinson. He was very rude to on the same court. And Wilkinson was very good friends with Dick Cheney. So that was difficult. He did have a good mind. One that has not gone so well in the intervening years. When he was passed over for The Supreme Court. He almost immediately takes his ball and goes home. He goes and works for Boeing. Yes, the company. He was as their, you know, in house counsel. Obviously they had a lot of problems. He gets out when those problems start being abundantly clear and transforms into an anti Trump blue like activist.
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Well, I was going to just quickly mention this. We talk about Harriet Myers. We'll talk about her in a second. But Ludig is, would have been. Is dodging even a worse bullet probably. I mean, he is anti second Amendment, anti first Amendment now, right? I mean, he was. Became one of the just a left winger essentially. And in my estimation, that almost certainly would have happened on the court.
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No, I think so. I think he is way too influenced by outside sources. You have to be willing to withstand bad things and not change who you are. This reminds me of something that always makes me sad when people tell me, thank you for not changing. It's just, it's like the saddest compliment you can get because you realize so many people have changed over time. They come to D.C. and they forget why they came. And anyway, I mean, it's okay to
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change if you really change your mind, but if you're changing your mind because the influences which, which the media even more now than ever, tries to pressure the court, yes, that's problematic, obviously.
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But yeah, yes. So Roberts gets at the first round and by then the Bush people were like, well, if we didn't, oh, sorry, he gets it for the Sandra Day o' Connor ends up retiring, not Rehnquist. They're like, okay, well, who knows what's happening with Rehnquist? So they nominate John Roberts and like two days before his hearings are to start, Rehnquist dies. So they pull the nomination for the o' Connor seat. They instead nominate him to be Chief Justice. They think that's going to be easier. And it is. It is much easier. He's a D.C. operative, he knew a lot of people. He was very smooth. He's widely confirmed. And also for many years, you know, for like six years, he was pretty solid. Then the Obamacare stuff happens and things go off the rails. So then they have this second opening and they say, okay, well, we did. We chose the, what we thought was the best person for that seat. Now we have to choose a woman. And they're just obsessed with it. But they don't like many of the conservative women because they think they're too conservative. And they end up picking Harriet Myers, who someone quipped was the smartest lawyer within 8ft of the Oval Office. Harriet Meyers was Bush's counsel, White House counsel, by the way. By all accounts, everyone who worked with her and knows her says she's like a lovely woman who does really solid work, and they think she would have done fine on the court.
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B
And I was surprised to learn from your book that she was actually a supporter of an Alito nomination, I believe,
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stalwart supporter from the very beginning. She thought, for all the reasons that conservatives would say he's got a very long track record of doing really good stuff and he's not going to be swayed on the court. She does not want to do this, but she ends up relenting because the Bush team explained to her she has to do it. At which point she's just put in this horrible situation of senators wanting to talk about their constitutional law issues and her not being a constitutional lawyer. She's just in way over her head and, you know, finally is finally steps down. So I got.
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Can I ask you a question about that? Yeah, I believe you. Clinton, I think, took like, months sometimes, right? Didn't he take months to nominate one? I forgot who it was. You mentioned it in the book, but
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Ruth Bader Ginsburg, it was. It was like a joke.
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He took 89 days. Something.
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Yes.
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Why. Why did the Bush White House panic? They. They had planned for this. They knew Sandra Day o', Connor, at some point they would. They knew at some point they'd want a woman on the court to put a woman on the court. They had this all this time to think about it, and then, boom, they're just nominating the closest person they can find. Who's a woman?
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I don't know. I do know there was even, like, Laura Bush was on a trip to South Africa, and she says something like, well, I really certainly hope that this next nominee is going to be a woman, because your. Your sex is the most important thing for being on the Supreme Court. And Sandra Day o' Connor had been really disappointed that she hadn't been replaced by a woman. George W. Bush has a funny line. After Laura Bush does this in South Africa, he says, oh, I can't wait to hear from Laura in person when she arrives home. You know, kind of like, what are you doing? And later, when Sonia Sotomayor is nominated, Laura Bush is like, I'm so happy because she's a woman. Ladies, this is embarrassing. Just. Can we pick people because they're the best and not because of their lady parts?
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B
Anyway, just one more thing. I'm sorry about your book. So your book, just so people know it gives a lot of context to what's going on with the court. It's, you know, as Alito, as Alito's career progresses. Right. And it was very interesting to me and I'd forgotten a lot about Miguel Estrada, who was very conservative, who was, you know, Hispanic, who they wanted to put on the court. And it was other than Clarence Thomas. It was, had been one of the first times that Democrats almost or were even more aggressively wanted to aggressively ensure that he would never be on the court. Right. They filibustered him. I think Dick Durbin had a memo where he said, you know, he's a dangerous man because he's Latino and on and on. I just don't want to leave him out because I think he, he got a really raw deal in D.C. it's
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so much worse than this. I didn't, I didn't say this specifically in the book, but, you know, his, his wife died and many people think it's because of the stress that she was under over what he had to go through with the filibuster. Even during the Trump, I think it was the first Trump administration, someone asked if he would serve in some high ranking position and he said something to the effect of, I will never be in another room with Senate Democrats. They specifically said that they filibustered him not because, you know, they agreed that his credentials were exemplary. They agreed that he was brilliant. And that is why they filibustered him, because they said because he's Hispanic, he's dangerous, because he would be difficult to vote against on the Supreme Court. It's a really rotten period of time. Yes. And they'd done that, by the way, with a bunch of other good candidates, including female candidates who they recognized might be more easily confirmed on the court. And so they filibustered them too. Anyway, Alito by this point has said, okay, obviously I'm not. When the Harriet Myers nomination comes out, the conservative movement rebelled so completely. Bush had gotten a couple like conservative leaders on board, like a, like Leonard Leo and the rest of the conservative legal movement said, over our dead bodies. We have worked very hard to fix this court and deal with bad Republican nominees like, you know, Souter and Sandra Day o' Connor and Anthony Kennedy. I mean, sometimes Souter was never, you know, never doing a nice guy, but never, never going the right way. And then o' Connor and Kennedy were inconsistent in their own philosophy and they were sick of Republican presidents squandering opportunities to fix a court that had been very activist, had been very political, and they'd built this entire movement and they were not going to let Bush do this. So at this point in time, though, Alito's like, well, I guess it's not in the cards for me. I'm happy being a federal judge. Then he gets a call from the White House.
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B
So, yes, I, I again, I think it was interesting that his interviews, I guess, didn't, weren't great like he was, he seemed pretty nervous initially. And, and that's why, for instance, Roberts might have come out ahead of him because he was thought of as well spoken, a leader in a court, not just a person who's, who might be brilliant on, on, on law. Right. All right. So he goes through the nomination process. How does that go for him? It was a closer vote than Roberts, right?
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A
It was a closer vote, but they did have a Republican majority. So the big thing they were worried about was a filibuster at the end. John Kerry calls for a filibuster, but he calls for it from Davos, Switzerland. So it wasn't taken very seriously by anybody. And the hearings were grueling. They almost, almost always are. And they were accusing Alito of being like a leader of a student group that was too conservative. He'd basically not even been a member. It was called, like Concerned Alumni of Princeton. They couldn't find any evidence tying him to anything bad, of course, and they accused him of improprieties on, you know, cases involving stocks. And that didn't go anywhere. And it, but the big moment, like the big moment of the hearings was when Lindsey Graham just flat out says, you know, are you an evil person? No. Are you a bigot? No. You know, are you the worst person in the world? No. He's like, I'm sorry for what these people have said to you. And Martha Ann, who could handle anything except people being nice to her, immediately breaks out. Martha Ann is Samuel Alito's wife, immediately breaks out in tears and leaves the room. And from that point on, it was over. Like, there was no way he was not going to be confirmed. And Saturday Night Live did this sketch of Martha Ann Alito that weekend where they, they made fun of her expressiveness so they would have different people playing different senators and then her reaction to it. So if I don't remember which senator was being really boring. So she nods off, someone else is going on for a long time. She grows like a lengthy beard. When, like, Mike DeWine from Ohio says something about the Constitution that's good, she kind of like fist taps her heart twice. And you know, supports him. And it was very funny because it turns out they kind of nailed it. That is, she is. She's an extremely expressive woman and the opposite of her husband in how vibrant and engaging she is.
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B
Say what you will about Lindsey Graham in these court battles, he can be pretty amazing sometimes. In the Kavanaugh battle, he was maybe the best senator out there. Right. So. So he's on the court, and you have a whole part of your book which I think is very interesting part, is called Building the best court in History, which is today's court. Right. Why do you think that it's the best court in American history? I mean, what makes it the best court?
- [35:24]
A
And I'm not, you know, it's not even like a particularly, like, ideological thing. I'm saying here. The quality and caliber of these justices, nearly all of these justices, greatly exceeds the courts of the past, where people would frequently be chosen for political reasons. They were politicians or they were chosen so they would get out of a race that mattered to the president, or they would just be friends of the president. This court, when you look at the caliber of these people, their, their academic history, their experience on lower courts, their understanding of constitutional law, they are really solid. And I'm thinking back to the John Roberts thing. I interviewed someone who was great. He's a, you know, at a law firm now, and he was trashing Roberts for, like, 40 minutes. And it was good stuff. But at the end he said, now I do want to say this. If you had told me in 2005 that Roberts would be the most liberal or like, the worst of the Republican appointed justices, he's like. And that there were six of them, I would have taken that in a heartbeat. So even Roberts, he can be bad, and frustratingly so. And he's definitely too willing to be pressured by the media, as we saw in the Obamacare cases. It was later reported after that surprising decision that he had been bullied into changing his position and that it absolutely, absolutely disgusted, you know, Kennedy and Scalia and Thomas and Alito. They were appalled by his behavior on that. But he's also shown a lot of strength on other things. I think people forget that he, he was really the driving force behind improving Supreme Court rulings, forbidding racism in admissions, for example. And so if that's your, if that's your quote, unquote, worst of the Republican appointees, like, you're in a good. And that there are six of them, you're in a pretty good place. I do want to say one thing, though, here, which is Roberts does have this fatal flaw where when something can be decided clearly, he tends to muddle it, which ends up causing more problems for the court down the road. And sometimes you see Barrett and Kavanaugh taking that approach as well. They think that kind of being a little wishy washy is going to be better. And it frequently makes things worse. And it just extends the work of the court. And I do think some of frustration you're seeing on the right side of the court is that, you know, the people who've been there a long time, Robert Thomas the longest by far, and then Roberts and then Alito, they understand that having a court with six, with five originalist justices and six, you know, fairly conservative justices is a rarity and it's fleeting. And there were many problems caused by the Warren and Burger courts and by the more liberal members under Rehnquist. There are many, many, many problems that are serious problems that need to be fixed. And time is not, you know, it's not free. And so if something needs to be fixed, I think Thomas and Alito think let's fix it. Even if it's difficult, let's fix it because we don't even know how long we'll be here, you know, and then, or who will appoint our replacements or the quality of those replacements. And so it would be there is the frustration is not invalid. It's just that you should have some perspective about how good the situation is. And in defense of the people who are so frustrated, I think they're thinking we're in a bad situation in the country, partly caused by a court that acted as a legislature for decades, and we need to be serious and intentional about fixing it as clearly and as quickly as we can anyway.
- [39:22]
B
But nevertheless, we don't want the court,
- [39:24]
A
I mean, even, even Kagan, I just want to say, is widely respected by, by colleagues and is, you know, usually doing a better job of handling her frustration with being on the losing side of everything than her other Democrat appointed peers.
- [39:40]
B
Well, her dissents and arguments are more logical and make more sense than the
- [39:46]
A
other two and much more persuasive.
- [39:48]
B
And also obviously she, she's being strategic for, for the long term legal consequences of whatever decisions are being made, I think. But let's, so let's talk about one of the worst decisions ever. But certainly in modern times in the court would be Roe v. Wade, for numerous reasons, not just because of the horrific consequences of it. Obviously, Alito played a huge role in overturning it. Did he cultivate the court? Did he cultivate this decision? Is this something that he was thinking about for a long time, like, what's the background on when it comes to abortion and Roe v. Wade with. With Alito?
- [40:29]
A
So I just want to explain, too, that for the book I did about a third event, a biography of Justice Alito, about a third of it really dealing with how his originalist jurisprudence compares and contrasts with others on the. He's very practical, and he cares more about the effects of decisions than some of his more theoretical colleagues. And then a third is about the Dobbs decision, which overturned Roe v. Wade, the leak, what happened on the Court that way, the how the media inflamed tensions on these things, too. So Dobbs was obviously something I was very interested in. I think, you know, so many people are interested in. And the story there is that from the very beginning, Roe v. Wade was kind of a fluke. At the time that it was handed down, the court was down two justices. Two justices had retired and then quickly died. And so Berger asks, like, a sub panel of justices to just pick out cases that can be easily handled while they're down two justices. And instead they pick Roe v. Wade. They wrongly thought it was like, a minor issue, you know, about state governance. And instead it becomes Roe v. Wade. And the decision, from the moment it is handed down is widely mocked or derided, even by people who love abortion. They're like, what is this? This reads like a piece of legislation, not constitutional law. And even Ruth Bader Ginsburg said she thought it was a mistake for them to do. To do it through the courts rather than through democratic means. And there had already been a pro life movement and a conservative movement going. But this really makes people care much more deeply about the Court, and they start to build entire, you know, conservative legal movement designed to fix problems like Roe v. Wade. Roe v. Wade was always rated, you know, like the worst decision the Supreme Court ever did after Dred Scott. Like, it's, it's, it's just, you know, no one thought it was a good decision. But in 1992, the court has an opportunity to overturn it. There are eight Republican nominated justices on the court at that time, and the one Democrat was one of the two dissenters in Roe v. Wade. Wizard White from Colorado. And you're talking about Casey. What was that?
- [42:55]
B
You're talking about Casey.
- [42:57]
A
Yeah, the Casey. The Casey case. So everyone is assuming this is how Roe is going to be overturned? Well, I think they're. I can't remember exactly how the vote went originally, but then three of the Republican nominated Justices o', Connor, Souter, Kennedy form what they call a troika that figures out a way to rewrite Roe v. Wade. So Roe v. Wade said abortion was hidden in privacy thing inferred in the 14th Amendment. They're like, well, why don't we change it? And we'll say that abortion is hidden in a liberty clause of the 14th Amendment. And we'll say that you, you have to apply strict scrutiny if you want to in any way impinge on this hidden constitutional right. And then finally they say, and now everyone, the issue is settled and you can't fight about it anymore. And instead, everyone in America was like, are you bleeping kidding me right now? Like, what? You don't get to decide what we get to fight about. That's the whole issue. And so it takes another long period of time for a case finally to appear at the court. This is one of my favorite parts of the book. I got to interview all the people that were involved in overturning Roe. What their legal strategy was, how they approached was really fun to learn and tell some of those stories about what that was like, including that everybody, all the DC elite lawyers said, do not ask for Roe to be overturned when the Dobbs case, which was Dobbs vs Jackson Women's Health Organization. So instead, the advocate there read through all of the abortion jurisprudence, which took forever, gets a sense that the justices are so sick of dealing with the Roe Casey framework that they are hoping someone will ask them to overturn it. So they do. And then once again, when he's preparing for oral argument, the advocate is told, give them an off ramp. Give them a way that they can uphold the Mississippi law without overturning Roe. And he's like, yeah, you know, I know DC Lawyers have a lot going for them and that they're very smart and that they're very good at what they do, but they lack courage. So I'm going to be courageous. I'm going to ask the justices to be courageous. So I have to be courageous. And I have to say there's no off ramp. And kind of amazingly, the, the people who support abortion also argued the same thing. They said, no off ramp. You have to either reaffirm Roe and Casey or you have to overturn them. So the justices, you know, had to make the decision. And I tell the story about all the, like, backroom issues there and how the case came and the way the votes happened. And it was a really interesting.
- [45:57]
B
It's interesting because in Heller as well, they refused to give the Court an off ramp. They thought they would, that things would continue the way they did. And they paid a deep price for that, I think, and of good, you know, I'm happy about it, but it seems to me like a good justice will be somewhat uneasy about overturning something, a big, you know, a big law like Obamacare even, or, you know, because they're undermining the will of people in some sense. Now, obviously, you know, I don't care.
- [46:27]
A
Not with Ro Casey. There was no will of the people.
- [46:29]
B
Exactly. The abortion law, Roe v. Wade's the opposite. They took away the democratic process from people. So to me, it seems like even for Roberts, that would make complete sense in the way he thinks about the world. Though sometimes I'm not sure how he thinks about the world. But let's actually talk about Dobbs a little bit. So one of the most consequential opinions in history. Right. And there was an immense, immense pressure on the entire court and then specifically then on Alito as well. Tell us a little bit about that.
- [47:02]
A
Well, it's interesting because the two justices who far and away receive the most threats are Thomas and Alito. And it's not surprising why. They're the two justices who do not change their opinions or in any way show an interest in how much the media and other left wing activists hate them. And the media loathe them for this. I mean, they are, their, their hatred is so visceral against these men because they can't control them and they are subjected to vicious campaigns. I also think the motive of the media and other Democrat and left wing activists, they know that Thomas and Alito are cut from completely different cloth than most men. And so they think that if, if they're doing this, it's more of a, to encourage the others kind of thing, that they might not be able to persuade Thomas or Alito to weaken. But when they are replaced, the message is loud and clear. If you don't want your children to be murdered or nearly murdered, that's Kavanaugh, you know, had. I should definitely not exclude how much they've done to Kavanaugh. If you don't want to be unable to go out to dinner in public, if you don't want to, you know, just live a life of unending threats, could you be more like Roberts, who does get to go out in public? You know, could you, could you maybe be more like that? And I think that is effective and I think it's a real threat to the court. And that's also why it's a real shame that more people in America haven't stood up to defend the Court from these vicious political attacks. When the founders framed the Constitution, they made it clear that the Court is not to be treated politically. They are given lifetime appointments. So you can't be fire them. If they don't rule the way that you prefer and their pay is protected, you can't cut their pay. And the culture should support this idea of letting the judges be judges, letting justices be justices. And it's a real shameful mark against, I would say, the legal movement, the conservative legal movement, Americans that they haven't done more to protect the Court from this other obvious blatant political attack. But as for the. You know how this all gets done. Alito did do a good job of shepherding. When Dobbs was appealed to the Supreme Court. It had one like, probably like the second longest period before it was announced that they would hear the case. It kept getting relisted and rescheduled for their discussion times between the justices. And it did finally. They did finally agree to hear it in February, but they waited to announce it until May, I think. And once the oral arguments were heard and once again, Alito did a masterful job during oral argument of showing that the effective but slippery advocate for the, for the government, Elizabeth Preligar, who said you cannot overturn precedent if there's not a meaningful change in facts from the time that it was established, he's like, does that apply to Plessy v. Ferguson? And she knew she was caught and it was really good effective argument, sorry. The Plessy v. Ferguson, which instituted the separate but equal racist system that the south used for many decades. So it turns out that there are five justices willing to overturn Roe. And at the Supreme Court the Chief justice assigns the opinions unless he's not in that group. And so since he would have upheld the Mississippi law but not overturned Roe. A great example of what I'm talking about where he goes wishy washy in a way that's not helpful. Thomas was the senior justice and he already had a big gun rights case that he was writing. And also he knew that Alito was the one to do it because Alito would be exhaustive in his write up that would. And he's also very good at holding majorities together. Sometimes the more, you know, quote unquote principled or more libertarian justices like Gorsuch and Thomas, they're, you know, they'd rather be right than in the majority. Sometimes they don't always keep a majority together. Alito is very good at saying, like, I might be with them, I might be with the more extreme position, but we're not going to keep a majority if I say that. So he, he's more incremental in how he writes. And it turned out. It was great.
- [51:45]
B
A quick technical question. So when Alito writes it, does he then send it to everyone and they can see it as the process goes on? And they can. And then he. To keep the court together, to keep the majority together. I mean, he will then edit it to worry about. To worry about their concerns. Does this happen in meetings? What is like the process there? What's the secret? Star Chamber?
- [52:08]
A
Tell the story in the book. I feel like I want people to read about what happened here. Or as I sometimes say, you don't have to read it, but you do have to buy it. So please buy the book, Alito, and do it immediately. That really, that really helps. But yes, I will say that Alito distributes it. So when, when you write a majority opinion, you distribute it to all the other justices and then people sign on or write dissents. And he distributed. He distributed the, the draft which was eventually leaked to all the justices. And I think it was like five minutes later that Gorsuch was like, yeah, I'm in.
- [52:51]
B
Yeah, that's what I was gonna. That's what was my setup. I wanted to say. So right away, it seems that people are on board, right? The majority, because.
- [53:00]
A
So everyone realized, oh, they all knew what they were doing and they were working on this privately before we got to this point. But that does also mean that the dissenting justices, they already knew how they were going to rule before oral argument. I think it's obvious, which means they'd had since May, really, of the previous year. Oral argument is on December 1. They had from at the very least December 1, to get their dissent together. And he distributes it early February. Early February. And so by the time it leaks, this is, by the way, I think, the most explosive part in the book. I tell this story about how it leaks in early May and immediately the justices lives are threatened. Amy Coney Barrett has to wear a bulletproof vest. The Alitos have to be moved to a secure location. Everybody's house is under attack by paid, coordinated left wing activists who are directed there by the posting of their home addresses. Merrick Garland is doing nothing. It is a horror show. There were hundreds of attacks on Christian churches and pro life centers, firebombings of some of these pro life centers. And the media were very blase about it and the Biden administration said, well, it's our understanding that these are peaceful protests, so we hope that continues. That was their response to trying to influence justices, because a leak of an opinion does not mean that the decision is final. And if any one of those five had been murdered, which was clearly the goal, Roe v. Wade would not have been overturned. And nothing is done to protect these. Very little is done to protect these people. But also it tells a story about what happened inside the court where the other justices, knowing full well that their colleagues were having their lives and the lives of their children threatened. Justice Kavanaugh's entire family was set for assassination by someone who said he was there to affect the outcomes on the court. There's a grading system for how near something is to completion. If the opinion is done and the dissents are done, that's an A. If they're nearly done, that's a B. Like they're just kind of finalizing. If they're nowhere near done, it's a C. Dobbs got a C in May. In May. And so the justices who are dealing with threats on their life are saying, could you get the dissent in as soon as possible? They're like, no, I have much more detail, but I'll let people read it because it's pretty explosive stuff. Then when the dissenters finally get their dissent done, they include a gratuitous reference to a case that was not near completion. So it would be coming out at the very end of the term. And that reference, you can't reference a case that hasn't yet been handed down. So even though they finally get it in like a month later, it delayed it another three plus weeks.
- [56:16]
B
So these delays were done on purpose to try to break apart majority.
- [56:22]
A
I cannot speak to their motivation. I can only say that their colleagues were having their lives under constant threat and they slow walked their response and gratuitously included a reference to a case that they knew was coming out at the very end of the term. So there are many things Justice Roberts could have done, including he could have said, we're just issuing the ruling and we'll wait for the dissent, or demanded that they get it done sooner. But it was so when people talk about collegiality on the court, I always think how difficult it would be. Like, David, if you were trying to get my children killed, I don't know if we could do this podcast, you know what I mean? Like, it's actually amazing that they're as civil as they are toward these people after what they Did.
- [57:13]
B
Let's talk about the leak a little bit more. From what you report, it seems like there was a legitimate good faith investigation into trying to find who did it, but there's just no real way of knowing. Even though you speculate, you say there's speculation. And I, I would ask you, who do you think it was, but I doubt you can answer that question. But you will.
- [57:35]
A
I would not say there was a good faith effort to find out. I think it was a very poorly done effort by the marshal.
- [57:41]
B
Because they interviewed like everyone, right?
- [57:44]
A
Not really. I mean, you can interview someone, right? So just for example, if the, you know, Politico received this leak from someone who was clearly an insider, I would say based on their quotes, clearly a clerk. Clearly a clerk, but not, I should say, most likely a clerk. And you're interviewing the clerks. There are only four per justice. You can say, did you leak this? And they got no's from everybody. Right? But how about doing it like a detective might? Have you ever interacted with a Politico reporter? Have you ever interacted with this particular politico reporter? Are you married to someone who's close with a Politico reporter? You know, that's a, that's a good faith investigation, right? Saying, did you leak? And they all say no.
- [58:40]
B
Well, do we know that they didn't ask them those questions? I'm just, I'm a plain devil's advocate.
- [58:45]
A
I, I do.
- [58:46]
B
Okay.
- [58:47]
A
And then also they did, they didn't really get into the process by which things were disseminated or who had access to it or where they had access to it. Some of the staff that I spoke with and clerks were appalled at the delay in the investigation and the lack of knowledge they had about what was going on. So, you know, in recent years, clerks have been able to take things home and work on them at home. And just by way of example, and I, you know, I truly think that unless the person who did it is out, is. Admits it, admits he or she did it, that you won't know for sure. Right? But you could say, like I was a clerk and I come home and I have the Dobbs draft on my computer because it's been disseminated to all of the chambers. And I don't leak it. Let's say I'm married to someone, Mark Hemingway, who does decide to leak it. Would he be able to do that? Is there any way you can imagine that someone in my house might be able to do that? And I could honestly testify that I hadn't done It. While also being involved in a plot to do it? I think so.
- [59:59]
B
Molly, are you intimating that someone involved in this journalistically was married to someone else who might have known someone in the court?
- [60:06]
A
I am just giving an example. I mean, there, there. I don't know the. I don't know the spousal situation of all the clerks. There were a few clerks who were mentioned, and one of them was married to someone who was very close to the person who, who published the leak. I don't. I'm not saying that just because that person is married to a left wing reporter who went, you know who. They attended each other's weddings, that that means that they leaked it. I'm just saying a good investigation would have dug into that.
- [60:33]
B
And I, I just want to say, I don't know if the people maybe understand what a massive scandal it is that this was leaked. Right. So it's a great book, Molly. I, I just, I want to stress to people that it's a carefully crafted fact, highly factual, researched book that tells a story from a conservative perspective. But it's not a partisan polemic or anything. It's a store. It's the story of Alito and the court in recent times. And, you know, I just think it's excellent. And if you, if you care about these issues, you should buy this book. I'm not the best salesman, but I'm telling you, I highly recommend it, so
- [61:13]
A
I hope you'll read it. It's called Alito. I am really hoping the conservative movement sees in him a model for how you can be both deeply principled and deeply pragmatic. That was a big part of this. There are so many people in this country who are like, I don't care what the effect of my principles are, but I'm principled and therefore I'm a great person. And then on the other hand, you have people who say, screw principles. We just have to win at any cost. And in Alito, you see that principle and pragmatism and getting things done are not at odds with each other. And I think the entire conservative movement needs to hear that, see that, and, you know, see how it operates and see how they can be like that, too. He is a man who has lessons for the country. And so it is obviously because he's a justice, it's very focused on the law. But to me, there are lessons from him for everybody, whether in the law or just in your family or in your daily life or in the political movements.
- [62:22]
B
I know we're running long, but I read a rumor that he might be stepping down. What do you think the chances of him stepping down before the next presidential election are?
- [62:31]
A
I don't know. I. I think Roberts should step down. I'll say that. I think Roberts would be a good person to step down. He's also in his 70s. He's been there longer than Alito. He's, you know, I think it'd be a good opportunity for him to. To leave.
- [62:49]
B
I think Sotomayor should step down.
- [62:52]
A
Sure. Thomas has indicated he's going out feet first, but I think he, you know, he might also be interested in that. I don't know. But losing Thomas or Alito would be huge blows to the court, and I fear they are irreplace. So it's his decision. We'll see. You know, we'll see. But I. I sort of don't think so. In. I mean, he has a book coming out in the fall. Yeah, I don't know if it means anything. I don't know.
- [63:21]
B
Read the book. If you have comments about the book or anything else, you can email us at radio the federalist.com we'll be back next week with our usual political cover, Fridge. And until then, be lovers of freedom and anxious for the fray.
- [63:43]
A
Our angel.