← Hillsdale College Podcast Network Superfeed
Hillsdale College Podcast Network Superfeed
Mollie Hemingway: Elections, Justice Alito, and the Future of the Supreme Court
00:47:51
Loading summary
Transcript50 lines
- [00:00]
Larry Arnn
Hello. Welcome to the Larry Arn Show. I am Larry Arn and I work at Hillsdale College. And today I have the great woman Molly Hemingway, who's a colleague. She's a senior journalism fellow at Hillsdale College. But of course, she's famous for a million things, including Fox News and God knows everything else. And she's an author and she's a real live journalist. And so we're going to learn something about that today. Back in a minute. Foreign.
- [00:31]
Podcast Announcer
This show is a part of the Hillsdale College Podcast Network. If you like what you hear, please subscribe to your favorite. You'll get brand new episodes of all your favorite shows sent right to your device and you'll help us know that you're out there listening. Never miss another episode by going to Podcast Hill Hillsdale Edu subscribe that's Podcast Hillsdale. Edu subscribe or click the Follow or Subscribe button on Apple podcasts, Spotify or YouTube.
- [01:12]
Podcast Promo Narrator
Great books, great people, great ideas. Learning about these things is critical to being a well educated human being. And we can help with the Hillsdale Dialogues. Each week, Hillsdale College President Larry Arne joins radio veteran Hugh Hewitt to discuss topics of enduring relevance. And from time to time, they also talk about current events, but always with an eye toward more fundamental truths. And they want you to tune in to a conversation like no other. The Hillsdale Dialogues are posted every Monday on the Hillsdale College Podcast Network at podcast hillsdale.edu. that's podcast hillsdale Edu. Or listen via Apple Podcasts, Spotify, YouTube or wherever, wherever you find your audio.
- [01:59]
Larry Arnn
Hello, Molly, how are you?
- [02:01]
Molly Hemingway
I'm great. It's great to be here with you.
- [02:04]
Larry Arnn
So you're a very strong woman, a journalist, editor in chief at the Federalist. I forgot to mention that you do everything. I know your family. I admire your husband very much. One of your daughters I know well and thinks she's spectacular. So good job on life. Well done.
- [02:23]
Molly Hemingway
Well, thank you.
- [02:24]
Larry Arnn
So we're going to talk about four things. We're going to talk about Virginia elections and your book rigged. And we're going to, I mean the redistricting vote in Virginia of late date and then journalism and how to do it, because you teach that here and you're just right. And your ability in regard to that is present in something in your book about Alito, whether you know it or not, because of the way you praise him. And we'll explore that and then we'll talk about your just released book on a very great Supreme Court Justice Samuel Alito. So, audience, get ready. We have 45 minutes. So there was a. You said that the redistricting vote a few weeks or months ago in Virginia of late date was an extinction level event for the Republican Party. The thing passed. Do you think the Republican Party is extinct?
- [03:20]
Molly Hemingway
Well, it's just so interesting to look at what happened there with this vote to gerrymander the state in the most extreme fashion that we've seen of any gerrymandering effort. The state went from six Democrat seats and five Republican seats to now 10 Democrat seats and one Republican seat. So you have all these like ridiculously shaped districts to ensure that Democrats have overwhelming control in passed with, you know, they're about 50% of the state is Democrat and it passed with 50% of the vote. But they will now control 91% of the congressional representation. And this is important. It's something that affects not just Virginia, but the entire House of Representatives. And it shows how willing Democrats are to put together the work to do this type of gerrymandering. Mark Elias, who was the person who signed the checks for the Russia collusion hoax, he's the guy who came up with the plan to completely weaken election security in the 2020 election. He said, I've been working on this for 10 years. And that's true. President Obama's Attorney General, Eric Holder has led their gerrymandering project. They've poured so much money into it and now they've got these results. And if the Republican Party doesn't like what it sees here, they should be investing in a similar fashion, first off, to fight these types of extreme gerrymanders with money and with effort and with ballot chase operations. But also they should understand that they control states where they could get, you know, four dozen more votes in Congress if they were to do similar type gerrymandering. To do nothing in the face of it. That's the problem.
- [05:13]
Larry Arnn
Four dozen. That's a lot.
- [05:15]
Molly Hemingway
It could be as much as that. Yeah. I mean, there are states that have done radical gerrymandering. Republicans, if they wanted to do it, could get so many more votes out of the states that they control.
- [05:27]
Larry Arnn
Wow. I'll add a historical note. I think the gerrymander, I think that name comes from a governor of Massachusetts named Jerry G E R R Y, who redrew the districts in Massachusetts. And everybody said it looked like a salamander. And he said, they said, no, it's not a salamander, it's a gerrymander. Well, that leads into your book Rigged, of which I'm fond, and I concluded something from it. I'd like to ask you to comment on it. The reason the election mess in America is so hard to understand is that it's like standing next to a mountain, trying to see how big it is. It's all over the place. So all kinds of things. Talk about that a little bit. What's wrong with the election system and what would we do to fix it?
- [06:28]
Molly Hemingway
Well, some of that is good, right? Each state handles their own elections and that means each state has a different way of monitoring voting lists and deciding the best way for people to vote. And that can be good and can actually help a state be free from outside interference. But the bigger picture is that you only have a self governing republic if you can trust the outcome of elections. A lot goes into that. Who's eligible to vote? How do you make sure that the people who are on your lists of being eligible to vote are the voters themselves? What do you do to clean up a list 10% of the country moves each year? What are you doing to make sure people aren't registered in multiple jurisdictions? What are you doing to ensure the integrity of control of the ballots? Is there custody of the ballots from the moment they're printed to the moment they're counted and beyond? And this used to be one thing when people would all go to one place, be known by their neighbors and identify themselves and vote and things were counted within a reasonable amount of time, like minutes or hours. It's entirely another thing when you have this complete chaotic system where people are mailing out ballots. They might be mailing out ballots just because you were once registered to vote, even though you've moved to a different state. So you have buildings where a ton of people are receiving ballots because they all used to live in that apartment building even though they no longer live there. And then you have different laws saying who gets to handle that ballot? And ballot chase is where you are going to people helping them fill out their ballot and taking that ballot into the ballot box. It's very different from traditional door knocking or other things, other traditional political campaign efforts. It also is ripe for exploitation and manipulation when you're bringing a lot of other people in an unsupervised fashion into the ballot process. So there's just so much going on there. And in 2020, I think everybody realized, wait a minute, we, we don't really know what's happening with our election system. And if you can't trust the outcome of elections, whether you're Democrat or Republican, it's very bad for the country and everybody should care about having a real locked down, secure system where people can be confident, where things are counted quickly and they're counted correctly and everyone can be confident in the outcome.
- [09:02]
Larry Arnn
Important thing, I'll add the historical comment that James Madison says that the unique thing about our Constitution, the unique thing differs from all ancient and modern constitutions, is that the people govern entirely through representation. And that means the way they pick the people is the, what is it, the linchpin of the whole system. So good work on that. Journalism. You teach journalism. You know you've the two books that you've written. One, I'm just out. I haven't read it yet, but I've read many reviews of it to get ready for this. You interview the heck out of people. Hundreds more. And you read everything. Tell me what it's like to be a journalist and tell me how do you teach it to people? Because you do that here at Hillsdale College.
- [09:56]
Molly Hemingway
Well, I first off have to say that for both the book Rigged and the book Alito, I had two for each book, two wonderful assistants provided by Hillsdale to help me with my research and my work. And it meant so much to me to have people who were just constantly looking up different facts and information and making sure that I could have everything correct in those books. And it certainly means a lot when you're dealing with controversial topics where everyone wants to make sure that you got everything, everything done correctly. And yes, I have had the pleasure of teaching journalism at Hillsdale now for several years and I love doing it. And I also have to say, Dr. Arne, you were the person who helped me learn how to teach in a more effective manner. And I just am humbled that you would do that for just even a fellow like me, as opposed to a full time faculty member, that you would have that kind of hands on instruction that has really transformed my classroom into one where I think the students are learning so much more. I teach narrative and propaganda in American journalism. Look, teaching people, whether they're journalism students or not, how to receive and interpret journalism with a critical eye. It's a really fun class to teach the students themselves. Bring in what we will discuss each week on things that they read or things that they saw. And we go through it together. It is a highlight of my week to be able to teach journalism to these Hillsdale students who are well beyond their peers in their understanding. But I love doing journalism and I love interviewing people and I love getting to write about it. I think that I'm in this position where I am able to speak with high level people and try to deeply understand events and institutions and then think about how to take all of that information. And yes, I did interview nearly 100 people for the Alito book. People who are Supreme Court justices or senators or federal judges or deans of law schools or childhood friends, and just having lengthy conversations where people are able to share their insights and then synthesizing all that information along with the historical record into a narrative that helps people understand what's happening at the court. What are the different streams of thought that you can read or hear from the bench or in opinions. I love getting to do that. And it's a real, It's a great career, I think, to be able to have these conversations and to be able to study things at a deep level and then move on to the next topic.
- [12:43]
Larry Arnn
Kids are something I notice here. We're kind of blessed here because the kids come here to study a bunch of hard stuff and they all have to study it and they grow while they do it. But social media is a curse and a blessing, I guess. But one part of the curse is you can find out anything you want to and get opinions about it in 10 minutes. And that's a little different than finding out the truth of it. And kids are drinking from a fire hose. And so they, you know, when they get to be 18, 19 years old, come to Hillsdale College and any college, they're trying to put together a picture of the world. And they get a lot of it from journalism and especially these days, social media journalism. And so I find myself saying to them more than I used to, I've been doing my job for a long time too. You know, you have to learn the difference between what you know and what you don't. And you have to learn how to find out if a thing is true. And, you know, the stuff that's sweeping through young people in America today, stuff about Israel that's not particularly intense here, but it comes up stuff about war, stuff about everything. I always say, you know, if you listen to them for a while, you get them talking, I'll say, you know, that isn't true. And they go, you know, they say, how do you know? And I said, well, I looked it up and you can find out. I had a young man and see, there's not anti Semitism here, and if there were, we'd whack it. But young man said, how do we know about the Holocaust? He said to me, and I happen to have studied that, and I said, did you ever Read a document from when you were 15 years old, something you wrote, a paper, a letter. And they nodded. He nodded his head. And I said, it's arresting when you do that, isn't it? Because it's like a picture of what you were. And whatever your memory is of what you were is corrected by that document. I said, imagine a document. There are two, and one of them is an order signed by a French official to deport some of his Neighbors east in 1942. And his neighbors, sir, he knows that ain't good. He doesn't know quite what's going to happen to him, but he knows it's not good. And the other document is a letter to his wife. And it says, I have to do that or they'll kill me and you and our children. And he goes, I said, can you imagine such a document, two documents? And he said he could. And I said, I've held those documents in my hand and there are thousands of them. I said, that's how we know. And he said, ah, you see? So you're, I think, Molly Hemingway in your books and in teaching our students, you are teaching them that how you know a thing?
- [16:10]
Molly Hemingway
Well, I think that it is so important, particularly at a time when much of corporate media has lost the trust of Americans. You look at polls showing that basically nobody who's not taking apart people who are on the left, nobody who's independent or on the right, really trusts the corporate media to report anything with honesty or accuracy. And then you see people buying into extreme social media, influencers who aren't basing. They might say they're basing their information on some factors. But you have to learn how to critically analyze both what you're hearing from the corporate media and from influencers, to root it in factual, truthful information, to also test it, to think about, why would someone say this? What advantage are they trying to gain by saying this? What is the narrative underlying this? And teaching students how to be critical consumers of information, how to be students, true students. That's a really important skill and only going to be more important as we see these problems with corporate media and the influencer world continuing.
- [17:26]
Larry Arnn
That's so good. The founders thought, first of all, America is an experiment. It hadn't been done before. And the crux of the experiment, the first paragraph of the Federalist, whether a people may govern themselves by reason and choice, reflection and choice, or whether they must depend upon accident and force, and that's it. So it puts a burden on the people if they're to be self governing and they need to learn how to do that or heaven forfend what may happen.
- [18:04]
Podcast Announcer
This show is a part of the Hillsdale College Podcast Network. If you like what you here, please subscribe to your favorite. You'll get brand new episodes of all your favorite shows sent right to your device and you'll help us know that you're out there listening. Never miss another episode by going to Podcast Hillsdale. Edu subscribe. That's Podcast Hillsdale Edu subscribe or click the Follow or Subscribe button on Apple podcasts, Spotify or YouTube. Hey there, it's Scott Bertram, host of the Radio Free Hillsdale Hour. Great show this week. Our friend Molly Hemingway is back, senior journalism fellow here at Hillsdale College, editor in chief of the Federalist. You see her on Fox News, the brand new bestseller, Alito, the Justice who Reshaped the Supreme Court and Restored the Constitution. We will talk in depth with Molly Hemingway about the book and about what she's learned about Justice Alito. Plus, Janie Nitze, lawyer and New York Times best selling author, tells us about her new children's book that she co authored with a Supreme Court Justice. That's Neil Gorsuch. The book is Heroes of 1776, the story of the Declaration of Independence. All that this week on the Radio Free Hillsdale Hour. Find it at Podcast Hillsdale. Edu or wherever you get your audio, including YouTube.
- [19:51]
Larry Arnn
So we'll talk about Sam Alito. He's a remarkable man. Tell us about him.
- [19:57]
Molly Hemingway
Well, when you just said this first paragraph from the Federalist, I was thinking of a recent speech from Clarence Thomas, Justice Clarence Thomas, and also some words from Justice Alito. In recent years, they've really emphasized that the country requires the people to believe the principles of the Founding in their hearts and they need to fight for them as well. And I think you see on the Court that these two men in particular care about that a great deal. I previously co authored a book with Carrie Severino on the Kavanaugh confirmation. And when we wrote that book, we interviewed many high level people and I was struck by how many people commented on the significance of Samuel Alito on the Court. And they would usually say something like nobody talks about him, but he's a giant on this court. And nobody talks about him relative to the more well known right of center justices because he's an incredibly reserved individual who does not seek celebrity in any way. And yet he's been behind some of the most important civil liberties decisions, religious freedom, freedom of speech, these types of cases. And of course also ended up authoring the Dobbs decision, which overturned Roe v. Wade. That had been a project of the conservative legal movement for 50 years. He was the one who did it. And I just knew this man had to be written about and we had to learn more about him. So that's what compelled me to write about him. And I am so glad I did. And I'm so pleased that people are learning more about this really interesting and significant consequential justice on the Court.
- [21:44]
Larry Arnn
How does he go about it? How does he work?
- [21:48]
Molly Hemingway
So, having interviewed a lot of clerks for different justices, the clerks are these people who are from the elite law schools, top of their class, and they serve one year terms with each Justice. And there are different types of chambers, different kinds of attitudes that you will see in the chambers, all of Alito's clerk's claim. And they're all incredibly bright, really impressive people themselves. But they claim he doesn't really need us. He does most of the work himself. He likes to author the opinion. We'll try to provide help, he'll redo it, and he'll be very pleasant about all the work that we put into it. He reads everything. He looks at the facts of the case. So if you look at Justices Scalia and Justice Thomas, they are people who are more theoretical, more philosophical in their approach. They think, well, this is what it should be. And so that's what I'm going to say it should be. Alito, who had been a federal judge for a very long time, 15 years before he was appointed to the Supreme Court, he'd been a US Attorney in New Jersey. He'd been in public service his entire career. He thinks more about what are the facts of the case, how will this ruling affect people at a local level. And he is very specific to the case that's in front of him, less about the broad issues in play. But he worked really well with Scalia and he works really well with Thomas. Because if Thomas is saying, okay, here's where we should be over here, Alito is the one saying, well, how are we going to get there? And he thinks about the way to move the court in the direction it should be. So they agree a lot, but they're different in their strategy.
- [23:33]
Larry Arnn
So that's rather like journalism, isn't it? I mean, he looks at the thing, and it's also the nature of the Court, isn't it, that what they do is decide disputes that come before them and the facts in the disputes are vital and the principles raised by the case only exist in each case, in those facts. So he's like a journalist, or I might add, an Aristotle scholar.
- [24:06]
Molly Hemingway
I had. I never thought of it that way. But one of the things that someone said to me when I was researching for this book really plays into that. He said, some justices who maybe had a background as an advocate before the court, where you're trying to convince the court to just go your way, they. When they are talking about the other side in a case, they'll just kind of. They'll just kind of wash it away and not treat it as a legitimate argument. Whereas Alito is much more forthright. He'll say, here are the challenges with deciding this case this way, or here's the best part of the opponent's argument. And I do think that's something journalists should do, Being able to put forward what are the best arguments on this position, what are the best arguments on that position, Even as you might be guiding readers to a particular conclusion and
- [24:59]
Larry Arnn
see you uncover something. I repeat, I haven't read the book yet, but I've been researching it, and one can find out anything these days. You know, you uncover something. The Constitution is full of big words. What's a right? What's property? What's a person? And so if the time comes when we mean something different by that word, or some people mean something different by that word, does that mean the Constitution means something different? And to many, it does. That's an explicit argument that's commonly made the living Constitution. Well, now, his approach to that, as you apparently describe it, is he tries to find out what the word meant to them. And he doesn't do that by reading the political philosophy that prevailed at the time, although he apparently does that. He does that by trying to see how they use the word rather like a case before him and the facts in the case, what did they mean when they said this thing? Is that true? Is that what he does?
- [26:13]
Molly Hemingway
It is. And one thing that I think is also interesting about the court right now, for decades, we had a court that didn't even pretend to care about the original meaning of the Constitution at the time it was written or any of the amendments at the time they were ratified. They were open and quite honest about their view that they should just rule the way that they felt and maybe act more as a legislature. The conservative legal movement really gets going in the late 70s, early 80s with this idea that people should focus on the original meaning of the words as they were passed. And right now, you do have five justices on the court who identify themselves as Originalists. Now, they still have quite a few disagreements, but that means that it's the first time we've had an originalist majority, perhaps ever. And you're seeing a court that is becoming much more willing to admit when things aren't in the Constitution, even if they wish they were. And Justice Alito is the more conservative of the originalists, and Justice Thomas is probably the more libertarian of the originalists, but they are very focused on understanding that original meaning, but also being judges of a. You know, in Alito's case in particular, being a judge, you know, a justice is a judge and judging the merits of a case and having that original meaning be a big part of that.
- [27:47]
Larry Arnn
I'll say a word for Justice Thomas. I happen to have known him before he became a famous man and know him still. And I have often styled him the greatest man I know. I still do. You know, it's funny. One thing we're talking about here is the relationship between theory and practice. Progressivism is a doctrine that comes from German historicism and holds the view that if you get a theory, then you can impose that on reality, which is the only way to understand reality, as Hegel and Woodrow Wilson and all his friends. And that's the left on the Court, too. And they're different two different ways. Justice Thomas and Justice Alito. And you have to add in Justice Scalia, who I think are the three key figures that take us back to the meaning of the Constitution. They have different ways of approaching that, but they mean the same thing, because Justice Thomas understands very well. He's written that the theory, the principle is not the theory. The principle is that all I am is a judge. And he talks about that a lot. But then when the time comes, he acts rather like Sam Alito. So I think they've all got different ways of getting there, and they get there.
- [29:10]
Molly Hemingway
Dr. Arne, one of the people who I interviewed had a really great way of putting it. I thought, saying that the Thomas chambers are like the aircraft carrier on the court. If they move just a little bit, it has a huge influence on the direction that the court is going. And they are the means by which all of the fighter jets go out. And the Alito chambers are more like the Green Berets on the same mission. They are doing the tactical work on the ground to prepare the area as well. So I like this kind of martial understanding of what these people are trying to do. And the other thing I just wanted to highlight that I think is worth remarking on is it's true of both of them. And I certainly have a lot about Justice Thomas in the book. And I agree with you. I think he's truly one of the country's greatest people we've ever had. But with Alito, he shows that you can be very principled and also very focused on achieving victory. And to your point that you were kind of referencing earlier, you see on the right, sometimes people who say we must win at any cost, we must use power, we just must defeat the enemy. And they don't care so much about the principles underlying that. And then you see on the other hand, a bunch of people who don't care at all about the effect of their supposedly great principles on the country. And with Alito, you see that you can marry these two things. They do not in any way need to be in conflict. And I think that's a great model going forward for Americans, not just people interested in the law, but all Americans about how to be both principled and pragmatic in thinking about how to secure victories for the country and for the people you care about.
- [31:05]
Larry Arnn
All right, let's illustrate these distinctions we're talking about with a case. So the Obergfell case, Justice Gorsuch, a fine man. I know him a bit. He rules that the word sex as it's written in the Constitution includes everything we mean by sex today, which is, you know, as, you know, quite various. And Alito responds to that in a dissent. And can you lay out his response for us and what it's based on?
- [31:38]
Molly Hemingway
And the case was called Bostock.
- [31:41]
Larry Arnn
Oh, I get it backwards, Sam.
- [31:44]
Molly Hemingway
But yes, he not only wrote out his feelings in a dissent, he also. Justice Alito also gave a speech at the George Mason University Anton Scalia Law School, where he explained in great detail his disagreement with Justice Gorsuch. Now, these are two men who get along very well. They frequently are on the same side of cases. And so this is not a personal thing between them. But Justice Alito showed how Justice Scalia, who also did these landmark work on textualism, which is related to originalism. So if originalism is about the Constitution, textualism is about how to interpret statutes. And most of the work before the Court is statutes. And that's what Bostock was looking at, a statute and how sex was understood in the Civil Rights Act. He says it was, you know, that it clearly applies to, you know, gender expression and sexual orientation. People were appalled when Gorsuch came out with this Bostock decision because it was so untethered from reality and it was redefining sex itself. From the court exactly the kind of thing that the conservative legal movement had hoped to end by nominating and getting appointed conservative, originalist justices. And Alito goes through in exhaustive detail all the ways that Gorsuch manipulated this theory of textualism to come to this outcome. And it includes how we know that at the time the Civil Rights act was passed, that did not mean sexual orientation or gender expression, because gender expression wasn't even a thing that was known at that time. And there were laws on the books against people working in federal government if they were gay. So he goes from that type of thing to also just explaining the plain meaning of words and how to understand the plain meaning of words. He gives this example of saying, if I ask my wife if she. She wants any breakfast when she comes down on Saturday morning, and she says, or they're talking on Saturday morning, and she says, thanks, I've already eaten. Yes, the plain meaning could mean that at some point in her life, she'd already eaten. But the context is clearly, I don't need breakfast this morning. And so he was explaining all these ways in which Justice Gorsuch had kind of blown through all the principles of textualism. They still get along. But that was definitely a decision that I'm sure Gorsuch, if he's being reasonable, he has to regret it. It's one of the worst decisions we've seen in recent years from an otherwise quite respectable justice.
- [34:28]
Larry Arnn
Yeah, he's very smart, very good guy. I didn't understand that thing. And see, there's a reason why this matters. If the Constitution was passed by a process that included the whole people of the United States, it's the only such law we have ever passed. And so if its meaning is fixed, then that means that the people today can rely on it and only they can change it. And so it actually is a protection of the authority of the people to think that the Constitution has a meaning that is fixed, that you can find out what it is. And this living Constitution is a license to steal for everybody in the government, not just the judges, but certainly the judges. You agree with that?
- [35:33]
Molly Hemingway
I do. And I think there are things that could help support that outside of the court as well. So the founders had intended to have a system where, if you wanted to revise the Constitution, it was difficult but not impossible to do. So we have a situation where we have a Congress that is roughly the same size as it was when our country was much smaller, meaning that people have a more difficult time having conversations with the people that are supposed to be representing them and maybe more difficulty amending the Constitution if they would like. So there are things that we could be thinking about if we want to be true to the Founders understanding of the importance of the Constitution. And boy, did they give us some great lines about the importance of that Constitution, but also the importance of having the people be able to have a say in whether they want to change it.
- [36:33]
Larry Arnn
That's right. For them to govern them, for us to govern ourselves. Right. That you need a process to do that. And the process has to be fixed enough so that hundreds of millions of people can cooperate with it over long periods of time. And if it's shifting around all the time, it's a problem. And also, you know, this living Constitution is connected to because, you know, once you begin to think that words don't mean anything, what you're really saying is that things don't mean anything. Sex doesn't mean anything. It means what you think about it. And you know, we all get born a certain way, every one of us, forever and probably into the future until we start manufacturing babies, which will be a problem if it happens. That won't be a happy development. And so it means something. And look, see, I think Alito, I've been fortunate to have students work for both, for several Supreme Court justices, especially Justice Thomas and Justice Alito. And they give these reports that you went and discovered, and those are galvanizing guys. Those are remarkable people to get to know.
- [37:54]
Molly Hemingway
Well, I find it interesting too, that the chambers of both Thomas and Alito, those justices pick their clerks a little bit differently than some of the other justices. For a lot of the justices, they just want the very top graduate of the top law school. And they care about that deeply and they're credentialing people. If you are a Supreme Court clerk, that usually means you can go on and do great things. You can make a tremendous amount of money. For both Thomas and Alito, they are seeking clerks who understand the moment that we're in and how important that situation is, how little time we really have to preserve the republic. So they're picking people who are much more interested in public service and using that gift of a Supreme Court clerk credential to go on and do great things. You will see both of those chambers have clerks come out with a real eye toward maybe becoming a solicitor general of a state or, or becoming a leader of a conservative nonprofit legal group or doing work in that sphere. And I think that shows that these men understand a little bit more about what has happened to the country. In recent years and how important it is that in a timely fashion, good people move to restore and help strengthen the Republic.
- [39:21]
Larry Arnn
Do you think Justice Alito is about to retire?
- [39:24]
Molly Hemingway
I do not think Justice Alito is going to retire this term. I don't know for certain. So I guess anything is possible. But just personally, one of the things I picked up by studying his jurisprudence, not just at the Supreme Court, but also when he was a federal judge on the Third Circuit from the moment Employment Division v. Smith, which was a it's a very well known case dealing with religious liberty, actually authored by Justice Scalia, but widely disliked by people on the right on that issue, which dealt with the religious rights of minorities and when they can be infringed upon. Justice Alito has been working since he was on the Third Circuit to find ways to work within this Supreme Court opinion while still protecting religious minorities rights. He's also worked to overturn it while on the Court, most recently a couple years ago when he was part of a unanimous decision about a foster care agency in Philadelphia that was being discriminated against because they understood marriage as the union of one man and one wife and one man and one woman. And he almost had a majority to overturn Employment Division v. Smith. But Justices Kavanaugh and particularly Justice Barrett, they were not ready to do it yet. The court has announced that they will be hearing more cases that will probably take a look at Employment Division v. Smith in the coming term. I think if that were successful, he might be more amenable, but he also could serve another 10, 15 years. It's hard to say. And Justice Thomas has said he's going out feet first. I don't know if that's true or not, but it would not surprise me if we saw a retirement nonetheless, including the other justice in his 70s who is chief Justice John Roberts.
- [41:22]
Larry Arnn
I encourage him. You know, I do know Justice Alito not well, but I hereby encourage him not to retire on the argument that people are not fungible. The people who urge him to retire are either people on the left or on the right. And the ones on the right do it because they think, well, there's a Senate majority right now and Trump's in and he probably picks somebody good. But the truth is, and you know, he's older, right. So get a young one. My own view is when you get a great one, good for him to keep working.
- [42:00]
Molly Hemingway
Yeah, I try not to encourage or discourage anyone. To me, it's their business. They are appointed for life and it's their decision. But Even on the issue of youth, I think that the conservative legal movement has learned over time how to pick better justices. There is no question that the six Republican appointed justices on the court right now are among the best we've seen. I interviewed someone who was complaining vociferously about Chief Justice John Roberts for like 45 minutes he was complaining about him. And at the end he said, now if you had told me that we would have six Republican appointees and Roberts would be the worst of them, he's like, I would have taken that deal in a heartbeat. And, you know, we should have that balance. But one of the things I think we're maybe erring too much on, or we're seeing the conservative legal movement err too much on, is picking youth over an established track record. Youth is not the only thing that matters. Clear, coherent opinions and consistency really matter. You're not going to get that if you're picking someone who's only on the bench for a year or two or three, or it's more of a gamble in that case.
- [43:11]
Larry Arnn
Yeah, I agree. We seem to be getting better at it. Of course they're going to. James Carville, the great Clinton associate moderate Democrat, has lately called for packing the court and adding Puerto rico and Washington D.C. as states and taking over the Senate and running the whole dang country. And you know, they could pack the court, right? And that's. If they do that, that's a big thing and it will reduce the authority of the court because it will seem to be then not the. There's nothing in the American government that is put there to be independent of the will of the public, but the branches are put there to be independent of each other. And if they're not, you don't have separation of powers, which is the feature that gives the whole structure to the Constitution in the United States. So breaking that down is a grievous step. What do you think's going to happen in general?
- [44:18]
Molly Hemingway
I wish I had a good answer to this. I think it's to your point of what you were just saying about some people wanting to pack the court, burn the system down, destabilize the situation with adding Puerto rico or Washington D.C. we are in a dire moment and I'm somewhat concerned that the people themselves are not prepared for what it takes to keep the Republic functioning. We are comfortable. We are largely wealthy. When you look at what our founders were going through, there were a pretty small percentage of them that actually undertook the work to engage in the revolution and to form our government, which has Been fairly stable for a long time, and I would like to see that continue. But there's no substitute for the work of the people. And we won't be saved by a good supreme court decision or 100 good Supreme Court decisions. We have to have in our own culture an understanding of how we are different, what our founding principles are and why they must be preserved. So I'm, you know, I always try to be optimistic about the situation, but we really do have some serious problems going forward that need to be addressed. And we need more great men to. To help lead us. Men like Justice Thomas and Justice Alito. These men are not made in every day, but there are other men out there who I would encourage men and women I would encourage to step up and help lead us from our current troubles.
- [46:05]
Larry Arnn
The people have been manipulated for decades. And I worry a little bit about cynicism. Like if you've been lied to by the authorities, then you stop believing anything. I didn't bring up when we talked about your book Rigged Covid, but I read an article, it was during spring break when Covid hit. I read an article that said that within if we don't close down the economy immediately, there'll be 20 million people dead or something, whatever it said. And I can remember the two thoughts that came to me immediately. The first one was, gosh, I wonder if it's going to kill my students. That's my first thought. And I spent the week trying to find out if I thought it would because I'm going to die soon enough, right? But shame if they all die as I tell them. It would be very inconvenient to me if a bunch of you to die. My second thought was the election. Second thought. I said, this is going to be about that. It plays a big part in your book. What do you think about that?
- [47:25]
Molly Hemingway
Well, I can't believe what we went through in Covid. I still have not I many unresolved feelings. Some of them anger about what the country was put through, what the world was put through, over our handling, our response to that. And it is also very frustrating to me that the people who perpetuated that have not really been held accountable. Back to the journalism thing, it used to be that there would be a big story and you would spend months, maybe even years on it. Or we've had so many big stories that we just kind of move on from very quickly. Learning about how some of the government health leaders were very nervous about information coming out, about how we had helped out the Wuhan Institute of Virology and therefore they suppressed actual scientific inquiry, news and information about our relationship to that laboratory, about their relationship to that laboratory, and how they thought it would be better to have massive lockdowns against all reason and history in order to protect themselves. And they're all walking freely. It's a horrifying thing to think about. I also can't get over how back to Mark Elias, this guy who started the Russia collusion hoax, who ran the campaign to change all of our election laws and processes. He had been trying to expand unsecured balloting for a decade when Covid happened. All of a sudden we saw all these states just overnight, sometimes in an unconstitutional fashion, just changing their laws and processes. And it's hard not to see a tie in with the election. Also, I'll point out that prior to Covid coming, that was the I remember the State of the Union where President Trump had just defeated impeachment. He had defeated the Russia collusion hoax. The economy was flying high, foreign policy victories were abounding. It was pretty clear he was going to win re election. And then right after that, they started their response to Covid. That changed everything.
- [49:42]
Larry Arnn
I work with young people. You have two children, I have four. And I have 1,650 at a time. And I can tell you, if you take two years of their lives at those young ages and confine them to quarters, first of all, they don't like it. Second of all, they see that their friends are not dying from this. And then third of all, it's hard for them to know what's true. And because they're young, you know, life goes on and you learn and you gain experience and takes time to put together an education. They'll grow out of that. But there's a lot of cynicism in the young right now because to what authority would they listen? And I just think the devastation of that thing, I think it messed up the 2020 election, but I think it goes far beyond that and it will continue well beyond that. And I will say in closing to you that you have told that story better than anybody and many stories better than anybody, and I am proud to have you with me today.
- [50:45]
Molly Hemingway
Thank you so much. It's always a pleasure to speak with you. And I thank you so much for all the help you've provided me in my teaching, in my writing, and just very grateful to know you and receive those benefits of knowing you.
- [50:58]
Larry Arnn
Say hi to the family.
- [50:59]
Molly Hemingway
Will do.
- [51:00]
Larry Arnn
Take care.