Mollie Hemingway: How Justice Alito Restored the Constitution

Summary

Podcast Summary: Mollie Hemingway – How Justice Alito Restored the Constitution

Podcast: Hillsdale College Podcast Network Superfeed
Episode: Mollie Hemingway: How Justice Alito Restored the Constitution
Date: May 1, 2026
Host: Scott Bertram
Guest: Mollie Hemingway (Senior Journalism Fellow, Editor-in-Chief of The Federalist, Fox News Contributor, Author)

Overview

This episode is a deep dive into Mollie Hemingway's new book, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. Hemingway and host Scott Bertram discuss the enigmatic personality of Justice Samuel Alito, his unique path to the Supreme Court, his judicial philosophy (particularly "practical originalism"), his role in landmark decisions such as Dobbs v. Jackson Women’s Health Organization, and exclusive behind-the-scenes insights about the internal dynamics and tensions on the Supreme Court.

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Key Discussion Points & Insights

1. Challenges of Writing About Justice Alito

• The Supreme Court is both a transparent and secretive institution: decisions are published, oral arguments are public, but the Court’s inner workings are closely guarded.
• Alito is notably private compared to other justices: "He does not want people talking about him." (Mollie Hemingway, [03:52])
• Hemingway conducted interviews with nearly 100 people close to Alito, including his colleagues and clerks.
• Justice Alito is described as "extremely reserved, extremely quiet." ([03:44])

2. Justice Alito's Background and Influences

• Only current Supreme Court Justice to have served in the armed forces.
• Military experience helps him understand and apply martial metaphors to legal conflicts, giving him a unique outlook: "He tends to view the current battle over what America will look like in those martial terms." ([05:02])
• His father (an Italian immigrant and public servant) profoundly influenced Alito's constitutional beliefs and public service ethic.
• Early exposure to the repercussions of Supreme Court decisions: his father's job was impacted by a major ruling.
• Known for his deep belief in the Constitution, rooted in personal and professional experiences. (Quote: "I see an absolute 100% belief in the Constitution that formed our country," [05:54])

3. Rise to the Supreme Court and Judicial Temperament

• Despite not being outwardly ambitious, Alito was repeatedly promoted because of his brilliance and integrity.
• His wife encouraged him to accept a federal judgeship, a move that eventually led to his Supreme Court nomination.
• Alito did not surprise observers philosophically after joining the Court—he was known for his steadfastness: "[He] wasn't striving for anything... promoted despite the fact that he has an inability to promote himself in any way." ([08:30])
• Discussed the appointment process; presidents are often surprised by how justices behave (example: John Roberts' lack of a defined judicial philosophy). ([09:43]–[11:04])

4. Oral Argument Skills and Influence on the Court

• Alito, along with Justice Kagan, is considered one of the best at oral arguments, often clarifying cases for the Court.
• Noted for incisive hypotheticals: Example given where Alito highlighted inconsistencies in a Minnesota law during oral arguments, leading to a clarification in Chief Justice Roberts's majority opinion. ([13:03]–[14:16])
• Alito often influences the Court even when he doesn’t author the majority opinion.

5. Character: Humility and Integrity

• Known for small acts of kindness within the Court (e.g., helping staff secure retirement benefits, mindful of staff effort).
• Seen as a model of humility and integrity, considered essential attributes for Supreme Court nominees: “When you're humble... you're humble about the application of the law. You're looking to be more reserved.” ([15:32])
• Contrasted to justices who, "get high on that power... think that the way they think is so wonderful that they should be able to legislate from the bench." ([15:47])

6. Judicial Philosophy: Practical Originalism

• Alito identifies as an originalist, but describes himself as a "practical originalist."
• Contrasted with Justices Thomas and Barrett, who follow a more philosophical or theoretical approach:
  • Thomas and Scalia are more about “planting their flag,” prioritizing being right over consensus.
  • Alito is likened to a “Green Beret” versus Thomas as an “aircraft carrier,” focusing on effective, incremental progress. ([16:52]–[17:39])
• Quote: “Being principled and being pragmatic and prudential, these are not in conflict with each other and they go well together.” ([19:49])

7. The Dobbs Decision and Aftermath

• Alito wrote the majority opinion in Dobbs, overturning Roe v. Wade.
• The decision required maintaining the delicate balance and unity in the majority under intense external pressure. Thomas, as the senior justice in the majority, assigned Alito to write Dobbs because of his reliability and capacity to withstand pressure ([20:59]).
• After the Dobbs draft was leaked, Supreme Court justices, especially conservative ones, faced direct threats to their safety. Some had to wear bulletproof vests, and Kavanaugh faced an assassination attempt.
• Internal Court tension mounted as the liberals delayed releasing their dissent, prolonging the danger for the majority ([22:21]–[25:25]).
• Hemingway reveals a behind-the-scenes shouting match: Elena Kagan yelled at Justice Breyer, urging him not to accommodate the majority’s request for an expedited dissent.

8. Court Dynamics, Clerk Selection, and Alito's Ethos

• Kagan is respected as the intellectual leader of the liberal wing and as the Court’s most strategic "politician," but is reportedly tough on her clerks ([25:57]–[27:11]).
• Roberts and Kavanaugh select clerks from top law schools regardless of ideology, emphasizing “D.C. peer” perception.
• Alito and Thomas prioritize public service-minded conservatives when hiring clerks. "They actually, not only do they not care what people in Washington, D.C. think about them, they think the higher they're viewed in Washington, D.C. the worse job they're doing." ([28:26])

9. Alito's Prospective Retirement and Remaining Goals

• Unlikely to retire soon; cares about who would appoint his replacement.
• Deeply invested in religious liberty cases; hopes to overturn or significantly limit Employment Division v. Smith, a longstanding goal.
• "I think that's probably chief of mind for him." ([30:03])

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Notable Quotes & Memorable Moments

• On the challenge of writing about Alito:
  "Justice Alito is extremely reserved, extremely quiet and he does not want people talking about him. So that was certainly a challenge."
  — Mollie Hemingway ([03:44])

• On Alito's approach:
  "He speaks frequently in military metaphors... he tends to view the current battle over what America will look like in those martial terms."
  — Mollie Hemingway ([05:02])

• On humility in the Court:
  "When you're humble, you're humble about the role of a justice, you're humble about the application of the law. You're looking to be more reserved."
  — Mollie Hemingway ([15:40])

• On originalism:
  "Justice Thomas is the deployed aircraft carrier and Justice Alito, his chambers are the Green Berets."
  — Mollie Hemingway ([17:35])

• On Dobbs leak & Court tensions:
  "Amy Coney Barrett has to wear a bulletproof vest, put it on in front of her children. People are being moved to secure locations..."
  — Mollie Hemingway ([23:05])

• Behind-the-scenes conflict:
  "Elena Kagan goes to Justice Breyer's chambers and screams at him not to accommodate them. And she won."
  — Mollie Hemingway ([23:35])

• On the blend of principle and pragmatism:
  "Being principled and being pragmatic and prudential, these are not in conflict with each other and they go well together."
  — Mollie Hemingway ([19:49])

• On clerk selection differences:
  "They actually, not only do they not care what people in Washington, D.C. think about them, they think the higher they're viewed in Washington, D.C. the worse job they're doing."
  — Mollie Hemingway ([28:26])

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Important Timestamps

• 03:32–04:07: Hemingway on challenges interviewing about the Supreme Court & Alito’s privacy
• 05:02: Alito’s military background’s influence on his judicial approach
• 06:09: Alito’s formative influences—family, early career, constitutional absolutism
• 08:05–09:09: Alito’s lack of outward ambition and career ascent
• 13:03–14:16: Alito’s oral argument skills, Minnesota political apparel case anecdote
• 15:32–16:26: Importance of humility and integrity for justices
• 16:52–17:39: Distinction between “practical originalism” and the approaches of Thomas/Scalia
• 19:49: Blending principle and prudence for effective judicial change
• 20:59–22:54: Dobbs decision, why Alito was chosen to author it, details of behind-the-scenes pressure
• 23:12–25:25: Kagan/Breyer dissent conflict and its impact on Justices’ personal safety
• 25:57–27:11: Kagan’s temperament and internal Court relations
• 28:26: Alito & Thomas’ clerking philosophy
• 30:03: Alito’s thoughts on retirement and unfinished business

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Tone & Style

The conversation is scholarly but approachable, reflective of the intellectual community at Hillsdale College and Hemingway's own journalistic style. The tone is respectful, forthright, and at times candid, particularly in discussing internal Court politics and the personal toll of the Dobbs decision.

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This summary captures the major themes, details, and exclusive insights from Mollie Hemingway’s interview on Justice Alito and his role in reshaping the Supreme Court. For anyone interested in the inner workings of the Supreme Court, the Dobbs decision, or conservative judicial philosophy, this episode provides a unique blend of biography, legal analysis, and inside reporting.

Transcript

[Podcast Network Announcer]

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[Scott Bertram]

From the historic campus of Hillsdale College in Hillsdale, Michigan, where the good, the true and the beautiful are taught, nurtured and honored, this is the Radio Free Hillsdale Hour, bringing the activity and education of the college to listeners across the country.

[Molly Hemingway]

And Justice Kavanaugh and his family had to deal with an attempted assassin on their street because people were posting their addresses and asking people to go to their houses. Kind of remarkable that the justices get along as well as they do, given what happened there.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

This is your host, Scott Bertram. Welcome to the Radio Free Hillsdale Hour, part of the Hillsdale College Podcast Network. That was Molly Hemingway, author of the brand new book the justice who Reshaped the Supreme Court and Restored the Constitution. We'll go in depth with Molly about that book on today's program. Also later on, Ginny Nitze. She's the co author with Supreme Court Justice Neil Gorsuch of a great new children's book, Heroes of 1776. First, we're joined by the great Molly Hemingway.

[Scott Bertram]

She is a senior journalism fellow here

[Radio Free Hillsdale Hour Host (Scott Bertram)]

at Hillsdale College, editor in chief at the Federalist, Fox News contributor, a best selling author, too.

[Scott Bertram]

You probably own her previous book, Rigged and maybe justice on Trial. And you'll probably own the new one, Alito, the Justice who Reshaped the Supreme Court and Restored the Constitution. Molly, thanks so much for joining us.

[Molly Hemingway]

It is so wonderful to be here with you.

[Scott Bertram]

You've done so much work for these books.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

You've written a lot of investigative work. This is different. You're writing about a sitting Supreme Court

[Scott Bertram]

justice for which secrecy is somewhat the norm.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

What were the unique challenges of writing a book on someone like Justice Alit?

[Molly Hemingway]

Well, there are already challenges in covering the Supreme Court. In some ways, the court is very transparent. It publicly announces what cases it's going to hear. It holds public oral arguments where you can hear what the justices want to know about a given case. It puts its decisions in writing and publishes them. And when people disagree, they publish those things as well. But in other ways, it is one of the most, if not the most secretive parts of Washington, D.C. it's a very small group of people who work in the Supreme Court. Each justice has four clerks per year. These are top graduates of law schools. They have about three staff members per justice and then a few permanent staff members. It's just not a big group of people. They tend to the staff members tend to work there for a long time. And if they're not talking to you, there's a limited pool of former staff members. And then among even the Justices themselves, Justice Alito is the one who's very reserved. The rest you'll occasionally see in public giving big talks or appearing on Broadway or going to the Grammys. Justice Alito is extremely reserved, extremely quiet, and he does not want people talking about him. So that was certainly a challenge. But I was able to interview nearly 100 people who are close to Justice Alito, including some of his colleagues, to get a really good picture and also be able to tell that behind the scenes story of what's happening on the Court.

[Scott Bertram]

Yes, it's kind of three books in one. It's this look at Sam Alito and who he is and how he became who he is. It's a look at the makeup and background of the current court and then some newsiness. And we'll talk about all three of those aspects in the course of our conversation today. You mentioned early in the Alito that he is the only Supreme Court member currently to have served in the armed forces.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

Is that a fun fact or does

[Scott Bertram]

that help in a way shape who Sam Alito is?

[Molly Hemingway]

In previous courts you had other Justices who had served in the military, but for many years now, he's been the only one to have had that experience. It's important that Justices understand different parts of society. You don't have to personally experience them to understand them, but sometimes it does help. And having had that background and having gone through what it was, what it was like to be drafted, to get a low draft number and to serve in the military, you know, definitely shaped Justice Alito, particularly since he's such a bookish, scholarly type to, to round that round out his personality. And he does also speak frequently in military metaphors with his clerks. He understands that there are lessons from war that can be applied to current conflicts. He tends to view the current battle over what America will be look like in those martial terms. He has a painting in his chambers, or it's not a painting, it's actually a print from like a Spanish tapestry that depicts a battle scene. And he's comfortable with thinking in those Terms as well.

[Scott Bertram]

You quote a fellow attorney that then Non. Justice Alito Zerv with saying, when I see Sam Alito, I see an absolute 100% belief in the Constitution that formed our country, which is great. You love to hear that. How did Justice Alito get there?

[Molly Hemingway]

His father had a profound influence upon him. His father, who was an immigrant from Italy, he came over when he was an infant, had spent his life in public service. He served in a nonpartisan role at the New Jersey Legislature. He'd learned, Alita learned early about how Supreme Court decisions can affect people's work. His dad had to completely redistrict New Jersey after a Supreme Court ruling that said that allocating legislative seats in the manner that the United States Senate did was not constitutional. And it was a lot of work for his dad, but it got him thinking about the Constitution at an early age. He was in debate at an early age, which also frequently dealt with constitutional issues. But that quote actually comes from someone he served with when he was U.S. attorney. He was prosecuting because he was the U.S. attorney of New Jersey. That means that he handled a lot of mob cases. He even dealt with people who were trying to kill him or a judge he later worked with on the Third Circuit, Marianne Trump, President Trump's sister. And there was a case involving a terrorist, a Japanese terrorist, and he had ineffective counsel. And now Justice Alito made sure that that man had his rights protected. And to see the opposing counsel worrying about the rights of the defendant, it really impressed his colleagues a great deal.

[Scott Bertram]

Molly Hemingway is with us. Her brand new book is the justice who Reshaped the Supreme Court and Restored the Constitution. Before he was 40 years old, Sam Alito had served in the Justice Department. He had served for the White House. He had made arguments in front of the Supreme Court. For someone who you describe as not outwardly ambitious, how does he accomplish all of that? How do people recognize that skill in Sam Alito?

[Molly Hemingway]

One of the things I've learned now that I've co authored a book on the Supreme Court and written another book, is you don't realize how much some of these people actually campaign for spots on the court. It's not everybody. Alito would be at quite the other extreme, and it's impressive because he wasn't striving for anything. He was a civil servant at the Department of Justice. Just because people recognized how good his work work was. Then he was asked to apply for a political position. He knew that the U.S. attorney work would be good. He eventually did want to be a federal Judge. He thought being a federal judge would be just the bee's knees. But compared to most of these people, I mean, it was really his wife, Martha Ann, who forced him to put his name in the hat for the federal judgeship that he held for 15 years. But it's really just his brilliance that is so obvious to colleagues and people who are observing that he keeps getting promoted despite the fact that he has an inability to promote himself in any way.

[Scott Bertram]

There is a discussion in Alito about how he became a nominee for the Supreme Court and was passed over the first time, was not the first choice the second time, but eventually is asked to be the nominee he accepts. And you say that even when presidents try to vet the Supreme Court candidates, and there are examples like o' Connor and Souter, they often missed something about the candidate. I'm curious, what did the Bush team? What do you think the Bush team missed about Alito? What were they surprised about? Once he was on the bench, he

[Molly Hemingway]

always had fans who thought he would be a great justice. And I actually don't think he surprised anyone, except for that one thing, which is frequently when people go to the Supreme Court, they kind of get wishy washy over time. The Republicans have been better at screening for that, I think. It's not, you know, we have three fairly new justices, so we'll have to see how that goes with them. But I think what they missed during that time was actually about Chief Justice John Roberts. Everybody loved John Roberts just as a person. And he'd always done a really good job of seeming like he was conservative. He worked for Ken Starr, he worked on, he worked for Republicans. He was willing to be a political person for Republicans. But even at the time, there were some people who said, I know we think he's conservative, but he's technically never said he was. And even when he was confirmed, he flat out said, I don't have a judicial philosophy, maybe I should, but I don't. And people get mad at Roberts, but I think he's actually been pretty true to who he said he would be, which is someone who doesn't have a conservative judicial philosophy and who said he would try to defer to Congress. He's kind of been, you know, he's not been as bad as his critics say, but he has been less consistent than people would have hoped for.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

We'll continue in just a moment with Molly Hemingway. Her new book is Alito. It's time for you to think about Revolutionary America, the brand new feature film from Hillsdale College, in theaters May 31, June 1 and June 2. It's a documentary experience that tells the true story of the American Founding. You know, our ancestors risked their lives, fortune and sacred honor fighting for liberty

[Scott Bertram]

in the American Revolution.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

Against all odds, they won. America's 250th is now approaching. Don't let the anniversary pass without seeing the film that shows what our founding fathers risked. Tickets are available now for A Ltd. Run May 31, June 1 and June 2. Hillsdale. Edu Film Hillsdale. Edu Film to find nearby theaters and purchase tickets for Revolutionary America, the big screen debut from Hillsdale College. Revolutionary america at hillsdale.edu film. We continue with Molly Hemingway, senior journalism fellow here at Hillsdale College, also editor in chief at the Federalist and author of the brand new book.

[Scott Bertram]

Alito Amalia is a person who asks questions of many people in the course of a week. I enjoyed the section on oral arguments and how sometimes Justice Alito's questions become turning points in those cases for other justices. Why is he so focused on oral arguments and their importance to individual cases?

[Molly Hemingway]

When the court decides to hear a case, the individual justices might have wildly different ideas about what the the nut of the issue is. When they get back into their conference, they're going to argue for their particular approach to a case or the way they think a case should be decided. Justice Alito, who's widely considered along with Elena Kagan, as the best at oral argument on the court, he has this knack for peeling away all the distractions that are there in a case and getting to what he believes is the heart of the issue. And it's very persuasive for people. He has managed to move the court through oral argument. Even if he's not writing the eventual, you know, opinion or decision, he can still influence the way people view it. And there are some pretty, I think, funny stories about that in the, in the book, like when there was a Minnesota law that forbade people from wearing political gear to vote, they had pulled aside someone who had a Tea Party shirt and a pin calling for voter id, and they said he was violating the law. And Justice Alito, in oral argument, starts asking a series of hypotheticals, like could you wear a rainbow flag shirt? Well, yeah, that's fine. That's not political. Could you wear a shirt commemorating the park or, you know, noting the Parkland community that had faced a gun massacre? Yes, that's fine. Okay. Can you wear an NRA shirt? No, you cannot wear a National Rifle association shirt. He says, well, could you wear a shirt with the words of the Second Amendment? No, that would be too political. And then he just like, lets it hang. And he says, what about a shirt with the words of the First Amendment? And everybody just busts out laughing. And that ends up being a centerpiece of Chief Justice John Roberts majority opinion that this was an infringement upon people's First Amendment rights. And he kind of clarified it for everybody, not of the issue.

[Scott Bertram]

Molly Hemingway with us. Her book Alito the Justice who Reshaped the Supreme Court and Restored the Constitution. There are frequent stories inside Alito about him being someone who helps, where he can assist, where he can lend a hand, where he can be a help to someone around him. He generally does so. And there's stories about him hiring other lawyers. Not lawyers, other judges, secretaries who need maybe a year or two for like, full retirement benefits. So he's often doing small things like that for people around him. There's a story about how he's making his own copies in the hallway, which meant the security guard had to and sit each time he walked by. And they said, hey, could you maybe have someone else do that? So the security guard can just sit down and not have to stand up. But point being humility and integrity. Humility and integrity are important for Supreme Court nominees. Alito had that in spades. Why does a Supreme Court nominee need those two attributes?

[Molly Hemingway]

Well, another justice who has that along with Alito is Thomas, who's also very much not wanting to put other people out and doesn't love the trappings of power. I think for the Supreme Court in particular, it is a powerful position. And a lot of people who have become justices get high on that power. And they think that the way they think is so wonderful that they should be able to legislate from the bench. When you're humble, you're humble about the role of a justice, you're humble about the application of the law. You're looking to be more reserved. And for Justice Alito, he's slightly different than all of his originalist colleagues. He does identify as an originalist, but he has said that he, you know, he says he's a practical originalist. And from the very beginning, he wanted to be. He had a view that the Court should be more restrained and less activist.

[Scott Bertram]

I want to ask about that phrase, practical originalism, because there are now, thankfully, a number of justices on the Supreme Court who say they are originalists. And you inside Alito try to again delineate between what makes Justice Alito's, maybe we'll call it a strain of originalism, slightly different than, say, Justice Thomas's or Justice Barrett's. What do you mean when you say practical originalism?

[Molly Hemingway]

Well, Justice Thomas, people love him and for good reason. He's one of our country's greatest American just greatest people. And he's more philosophical in his approach. He's very much like Justice Scalia was. These are men who say, well, this is what it should be. And I'm going to plant my flag here and I don't really care if anyone's with me because I care about being right. It is a form of leadership on the Court, what Clarence Thomas provides. You see this most. You see this especially with how he viewed when he got on the Court, gun rights as an individual right. And he was frequently out there on his own and eventually the Court agreed with him. Well, Alito may agree with Thomas, they almost always do. But he's thinking more about, well, if that's where we should be, how are we going to get there? And you don't always just get there by planting your flag. Sometimes you also have to do work and using incremental decisions, getting there. The way it was put in the book by someone was that Justice Thomas is the deployed aircraft carrier and Justice Alito, his chambers are the Green Berets. And if you want to have success on the Court, it's good to have both.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

I want to ask a little more

[Scott Bertram]

about that because I talked with James Rosen recently for his second part of his three part biography on former Supreme Court late Justice Antonin Scalia. And something in the second part that really came through was Scalia was not known for bringing people to his side necessarily. He wasn't known for sort of crafting these majorities. He wasn't known for sort of cajoling others on the Court to his point of view. And it does seem like in Alito, you describe a Justice who is more concerned about that or at least has the skill to build some bridges and to make those connections happen without. Without softening his own perspective or his own point of view.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

Is that accurate?

[Molly Hemingway]

Yes, that's what I learned from his colleagues and people who are close court watchers. When Scalia was appointed, this was after you had a Brennan on the Court who was also a very good writer and he was very persuasive with his colleagues and he was very influential on the Court. People thought because Scalia was so brilliant with the written word and so fun and, you know, just people just loved being around him. He famously had a very good friendship with Ruth Bader Ginsburg. They were kind of hoping he would be like the Brennan of the right. But because of what you just noted, he actually didn't really care if anyone was with him. What did one of the colleagues say? It was like someone who said, you know, he'd rather be right than be president for which famous person that was. That's. That's how Scalia was. And I think, you know, Thomas, he said it publicly before. He cares about his own opinions more than the opinions of others, whereas Alito's thinking, well, he might feel that way too. But you still want to have wins. And right now, in the conservative movement, we have these people who say the only thing that matters is principle, and these other people who want to actually achieve victory, they're wrong. And then on the other hand, you have these people who say, all I care about is winning at any cost, and I'm sick of these people who care about principle. I think Alito provides a very good model for how both sides are erring. In fact, being principled and being pragmatic and prudential, these are not in conflict with each other and they go well together. This is what effective movements do, whether it's a legal movement or a political movement, to blend being firmly rooted on principle and your judicial philosophy, while also thinking, how does this help the situation?

[Scott Bertram]

Molly Hemingway with us, her new book, the justice who Reshaped the Supreme Court and Restored the Constitution. Let's use that to pivot toward the Dobbs decision. Alito writes the Dobbs decision, the majority decision in that case. Is that one of the main reasons why Alita was the right justice to pen that ruling?

[Molly Hemingway]

Yes. So when the Dobbs decision was coming down the pike, it was, first of all, interesting. People knew that Roe v. Wade had to be overturned. They'd known this for decades. Even at the time it was passed, it was roundly derided as being nowhere near constitutional law, just being a joke of a decision in many ways. But. But when it came time to overturn it, people would always lack the courage. They would be dealing with so much political pressure they couldn't take it. And so when Dobbs finally gets a hearing before the Court, it's pretty clear, you can hear it in the oral argument. There are five votes to overturn Roe v. Wade, and in fact, that's what there were. And the person who assigns the opinion is the senior most justice in the majority. So that was Clarence Thomas. And he knew it was delicate. He knew every time that they'd tried to do this before, it had fallen apart. He needed someone he Couldn't do it himself because he was already working on a big gun rights case, which is a big issue for Justice Thomas. And he needed someone who would do the work that needed to be done for this to be viewed as a legitimate ruling that would keep the majority together and that would be able to withstand the unbelievable pressure coming from the media and the left and other. Other groups. And so it was kind of a no brainer. It had to be Alito during the

[Scott Bertram]

Dobbs deliberations and in the writing of that decision. I guess after the writing of the decision, it is leaked, of course, a big leak to Politico. And people now know that the majority opinion will be to overturn Roe v. Wade. This puts Supreme Court Justices in danger because an opinion is not, in effect, does not happen until that opinion is actually released and they're waiting on the dissent. And the liberals on the Court are slow playing the dissent, and the conservatives or the majority says, okay, at least

[Radio Free Hillsdale Hour Host (Scott Bertram)]

give us a date.

[Scott Bertram]

And they won't do that. And you have a story early in Alito that is making some news about a shouting match. I was gonna say between, but I'm not sure it's between a shouter on the Supreme Court shouting at a different Supreme Court Justice, Elena Kagan and Stephen Breyer. What did you learn about that incident?

[Molly Hemingway]

Well, this, to me was the most explosive thing I learned about what was happening behind the scenes on the court. Yeah. After the Dobbs decision is leaked, the threats on the justices lives are immediate. And it's a very bad situation. Amy Coney Barrett has to wear a bulletproof vest, put it on in front of her children. People are being moved to secure locations. Everybody's security protocol is having to be improved right away when they meet in conference, which means just the nine justices themselves. After that leak, they learn that the people writing the dissent, who've had really 50 years to write the dissent, but at the very least since December 1st and also from February when the majority opinion was disseminated, they claim they're nowhere near being done with their dissent. And so they're asked, could you speed it up? Could you give us a date by which time you'll be done? And they demur. And then, yes, Elena Kagan goes to Justice Breyer's chambers. Justice Breyer, strong progressive on the court, who was retiring, but viewed with love and admiration by his colleagues. He was always very cordial, very kind to his colleagues, and he seemed to be the one most willing to accommodate them out of concern for their lives. And Elena Kagan goes to his chambers and screams at him not to accommodate them. And she won because they didn't get their opinion done until June or their dissent done until June. And then they included in it a completely gratuitous and unnecessary footnote to a case that really was still being worked on and wouldn't come out for three to four weeks. They didn't need to include that footnote, but they did, and that then delayed it another three and a half weeks while the justices had their lives threatened every day. And Justice Kavanaugh and his family had to deal with an attempted assassin on their street because people were posting their addresses and asking people to go to their houses. I mean, it was a horrific situation. It's kind of remarkable that the justices get along as well as they do, given what happened there.

[Scott Bertram]

Well, let me ask about that. Elena Kagan. There's a section later on in Alito where you say that some of her clerks, along with others, describe her as emotionally abusive, demanding, demoralizing, demeaning. Her clerks had fear in their eyes, recalled someone who clerked for a different Justice. Kagan, for the most part, is thought about as the reasonable one, or at least the smart one among the liberal justices on the Court by many conservatives.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

But do people like her? She liked.

[Molly Hemingway]

So these things are both true. She is far and away the intellectual leader of the left wing of the Court, and if the Court were a different composition, she would probably be the intellectual leader of the Court, period. She is smart, she does her work, and so the justices do respect her and take her arguments very seriously. She's also the liberal justice most likely to work with the conservative majority on and and she tries to be persuasive to get them to see things her way. If she's able to join an opinion to soften it, she'll do that. So she's very strategic. I will say there's another thing in there about her that she learned how to golf so she could cozy up with some of the justices. She learned how to hunt so she could go on trips with Justice Scalia. And sometimes that can be viewed as trying a bit too hard and being a bit too obvious about the political nature of how she views things. She is the best politician on the Court. She's the only one who was not a federal judge prior to being on the Court. She actually had a political background. So she's a complicated figure, but she still is far and away the most respected of the liberals by the conservatives.

[Scott Bertram]

Speaking of other justices, Molly Hemingway, you have a little note in Chapter six, that John Roberts and Brett Kavanaugh only consider the top students from top law schools to be clerks, don't consider political persuasion. Some don't even make the pretense of being conservative. Alito, on the other hand, tries to find good conservative minds and work with them and shape them as they are clerks.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

Well, what's the rationale or argument?

[Scott Bertram]

Why would Roberts and Kavanaugh not necessarily care about the persuasions or even the legal thinking of the clerks they hire?

[Molly Hemingway]

Doing a book like this, you talk to a lot of clerks from a lot of different justices, and they're all impressive people. In the case of Chief Justice Roberts in particular. But I think you see this with Kavanaugh as well. They're very conscious of how their peers in Washington, D.C. view them and the way that they choose clerks. The very top grads of the top law schools who will frequently go on to become powerful people in law firms. That. That kind of works with the DC Mindset, with Justice Thomas and Justice Alito. That is not how they're going about picking clerks, because they care about different things. They actually, not only do they not care what people in Washington, D.C. think about them, they think the higher they're Viewed in Washington, D.C. the worse job they're doing. So they want to pick people who share their concern for the country. They are also the very top elite grads of top law schools, but they're. They're screening. And in Alito's case in particular, actually, I think both of the. Both of them do this. They screen for public service. They want people who are going to become solicitors general or working at a nonprofit law firm or working in some fashion to help the country, which they view as needing a lot of help right now. When you become a clerk, you leave and immediately make not just more than the Supreme Court justice, you make many times more than the Supreme Court justice. It's an incredible privilege and gift to get this. You also, since you were mentioning James Rosen's book on Scalia, he used to hire a clerk. He used to intentionally hire a clerk that was from a different ideology to sharpen his chambers. But even he stopped doing that after a while because he realized, I'm just credentialing people for really no good reason.

[Scott Bertram]

Molly, we have 60 seconds left. So quickly, if you can. There has been discussion about potential retirement for Sam Alito. I don't want to ask you if he is or isn't. I want to ask you how he's going to approach it. Do you think that Justice Alito believes he is is singular, that he is of utmost importance to the court, that he continue to serve, or is he someone who will take into account the future of the court and who might get to choose his replacement?

[Molly Hemingway]

I think he would be conscious of who would be choosing his replacement, and I also think he cares deeply about religious liberty. And one of his big goals that has not happened yet is overturning or limiting Employment Division v. Smith, a Scalia decision that he has disagreed with since 1990. I think it is and has worked to soften it. And this next term they're going to be looking at that. And he almost got it overturned a couple years ago, so I think that's probably chief of mind for him.

[Scott Bertram]

Molly Hemingway, senior journalism fellow here at Hillsdale College, editor in chief at the Federalist and a Fox News contributor. The new book it's Wonderful Alito, the Justice who Reshaped the Supreme Court and Restored the Constitution. Molly Hemingway, thanks so much for joining us.

[Molly Hemingway]

Thank you, Scott.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

Up next, Janie Nitza joins us. She's co author with Supreme Court Justice Neil Gorsuch of the brand new children's book Heroes of 1776.

[Scott Bertram]

I'm Scott Bertram.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

This is the Radio Free Hillsdale Hour.

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[Radio Free Hillsdale Hour Host (Scott Bertram)]

We're back on the Radio Free Hillsdale Hour.

[Scott Bertram]

I'm Scott Bertram.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

Be sure to check out more great Hillsdale College audio via the Hillsdale College Podcast Network. Podcast Hillsdale Edu for older episodes of this program plus the Larry Arn show, the Hills, Hillsdale College online courses, Podcast Imprimis and more at Podcast Hillsdale Edu

[Scott Bertram]

or wherever you get your audio.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

We're joined by Janie Nitze.

[Scott Bertram]

She's co author of a brand new book along with Supreme Court Justice Neil

[Radio Free Hillsdale Hour Host (Scott Bertram)]

Gorsuch called heroes of 1776 the story

[Scott Bertram]

of the Declaration of Independence. Janie has a little experience with the justice, writing two other New York Times bestsellers with him in the past. Janie, thanks so much for joining us.

[Janie Nitze]

Thank you so much for having me. I'm delighted to be here.

[Scott Bertram]

Great timing. I know you planned it this way. Coincides with the 250th anniversary, of course. It's nice when things work out that way. Book is called heroes of 1776. So what does the word hero mean to you in the context of the founding generation?

[Janie Nitze]

That's a great question, I think. To me, hero in this context means individuals. And we talk about men, women, children, individuals who displayed virtues like courage and honor and duty, who sacrificed many times their livelihoods, their lives in pursuit of the ideals of the Declaration, the ideals of our country. Fun fact. I learned in the course of writing this book that some scholars think that the etymology of the word heroes comes from an old word meaning to protect or to defend, which I sort of love. So it's sort of to protect or defend the ideals of our nation, although they at the time were giving birth to them.

[Scott Bertram]

Should point out Heroes of 1776 is a children's book, but that doesn't mean it's not great for adults. I've read enough children's books in my time to know that there are some that are also great for adults. This is one of them. Heroes of 1776. A lot of people know the Declaration, but they don't know the people behind it or around it. Why is it important? And why in heroes of 1776 do we meet and hear about the human stories instead of just those historical events?

[Janie Nitze]

Yeah, I mean, you're actually touching here on one of the reasons why we wanted to write a children's book focusing on the human stories, which is that there are many books out there that great books that focus on the events that led to the Declarations, of the Stamp act, blockade, of Boston Tea Party, and so forth. But those series of events did not inevitably lead to the Declaration. The pages of the history books are full of people who were oppressed, maybe have risen against a tyrannical ruler and didn't end up with anything like our Declaration of Independence. And even as late as June of 1776 wasn't obvious that the colonists would declare independence against Britain. The colonies. At the second content of Congress, at the first vote, they were split. Not only nine colonies voted for independence, two voted against it, one Delaware. Delegates were tied and New York hadn't received instructions, didn't vote at all. And it took men like Cesar Rodney. We tell his story. He was a delegate from Delaware away on military business. He rode 80 miles through the night. Cancer was eating away at his face. There was a thunderstorm raging outside to break the boat in his delegation in favor of independence. It took men like Edward Rutledge. He was in the South Carolina delegation. He did not favor independence at that time at least, but he put aside his own personal views and in favor of having the colonies vote unanimously. And then even once independence was declared, it wasn't obvious we would have a declaration that had those three great ideals, you know, quality rights, including the right to self rule, and then the revolution itself. We would have never won. In fact, the odds were greatly stacked against us. Of course, without men, women and children from across the colonies, you know, kids as young as 10, you know, earlier young 10 joining the continental armory. You know, Richard Lord Jones. Jones, his story we actually don't tell in the book. And that's part of our hope of doing this book is that kids will want to learn more. So he was 10 years old when he joined the army as a fifer. And he was discharged three years later, 150 miles from home. He walked home. I mean, it was just incredible stories. And so none of this would have happened without men, women, children at the time. And as Benjamin Franklin said on exiting the Continental Congress, when asked, what do you guys form in there? And he said, republic if you can keep it. So none of this can endure either without men, women and children today knowing the rights, ensuring that they're preserved for future generations.

[Scott Bertram]

Jani Nitze is with us. She's co author with Supreme Court Justice Neil Gorsuch of the new book Heroes of 1776 the Story of the Declaration of Independence. Many of those individuals that you mention took enormous personal risks, family livelihood, even their lives. How can children today, our young people today, how can they find a way to fully appreciate that level of sacrifice?

[Janie Nitze]

I think it's very hard for people born into freedom to appreciate just how glorious a thing it is and how fragile it is. And here one of my favorite quotes. D.H. lawrence. Men fight for liberty and win it with hard knocks. Their children brought up easy Let it slip away. And, you know, my own parents fled from communism. And so this was something I heard. They came to this country in search of freedom. And something I heard when I was growing up, sort of, you know, them thinking I took for granted is it probably did, you know, freedom of speech and of religion. You know, officers weren't going to burst into my home at any moment. Right. That's all things that they experienced back in their own country. And I think how I started to learn gratitude or go on the journey of it, it's an imperfect journey, is really from, again, stories, learning their stories of what it was like growing up under a system like communism. I think our hope here in this book is really for kids to start learning a little bit about US history, some about civics and really about virtues, and hopefully seeing what children, some probably younger than themselves, did at that time, the sacrifices they went through at that time. Again, the fifer, who joins the army at age 10, I think that really to understand our freedoms is important, to understand our history and to understand what people sacrifice in order to gain those freedoms for us.

[Scott Bertram]

There's the story Inside Heroes, of 1776 of Mary Catherine Goddard. After the Declaration is signed, they had to print it, and Mary Katherine Goddard was in charge of that. Tell us why you included her story in this book.

[Janie Nitze]

Her story is one of my favorites. So she is born in Connecticut. She follows her family to Baltimore. Her brother starts the first Baltimore newspaper on the cusp of the revolution. He eventually leaves to go travel around the countries and try to form the Continental Press as an alternative to the Royal Post. Apologies. As an alternative to the Royal Post. And she takes over the newspaper and she turns into a voice of patriot resistance. And when the Second Continental Congress landed in Baltimore in January 1776, after the British took over Philadelphia, they decided at that moment to print a version of the Declaration with all their names on it, which they had not done thus far, knowing full well that the British would target them. They'd only publish a version of the Declaration with two names on it, John Hancock and the Secretary. And they turned to Mary Katherine Goddard. And what I love about her story is in the past, when she had printed her newspaper, she signed her name M.K. goddard. And while we can't exactly know why, we could surmise perhaps that she was trying to shield her identity, maybe even shield the fact that she was a woman. But on the Declaration, for the first time that we know of, she signed her name, printed by Mary Catherine Goddard, her full name, identifying herself alongside the signers as a traitor to the British and really exposing herself to vengeance, just like the signers. And it was one of these stories that we included that, to be honest, I didn't know of before researching the Declaration for this book, I didn't know that a woman's name appears in the Declaration of Independence. So it's just sort of one of my favorite stories from the book.

[Scott Bertram]

Talking with Janie Nitze. She is co author with Supreme Court Justice Neil Gorsuch of Heroes of 1776, a wonderful new children's book. What was it like working with Justice Gorsuch? What did he bring to the project creatively?

[Janie Nitze]

Oh, he's just a wonderful, wonderful person to work with. Of course, as you mentioned, have worked with him for three books at the moment. And I think what I particularly appreciate, both having clerked for him twice now and then worked for him on several books, is he's someone who understands that the human stories matter. Certainly they don't affect how he rules in a particular case and so on. Our last book, Overruled, where we talked about the change in the law in the last few decades, Rise of the bureaucracy. We really wrote about the bureaucracy through human stories. And we wanted to do similarly in telling the story of the Declaration. And he's someone, you know, speaking of virtue, we talk a lot about virtues in this book. And he's someone that just has been such a, you know, wonderful mentor for myself and other clerks because he really embodies so many of the virtues that I think perhaps now maybe, maybe is, you know, lost among some other loss among society, maybe, let's put it that way. And so it was really just wonderful working with him.

[Scott Bertram]

Heroes of 1776. The book jacket unfurls to become a copy of the Declaration of Independence. And I've also talked to enough children's authors to know how much they want to highlight and discuss the people who do the illustrations in the book. And Heroes of 1776 is beautifully illustrated, a lot of them, full page color illustrations. Chris Ellison. Where did you find him and what does his drawings, illustrations bring to heroes of 1776?

[Janie Nitze]

I'm so glad you bring this up because I really think his illustrations just make the book. He doesn't use AI or digital media, anything of the sword he draws by hand. And he creates these incredibly vivid and compelling images that I think really bring these stories to life. I had known of him from prior children's books that he had illustrated. I was always very drawn to them when I read to my own kids. His books in particular and so as we set about, to be honest, to write this book, we knew that were we so fortunate to get our first pick, it would be him. And thankfully, he agreed to come on board. But his illustrations really are just incredible and I think will allow kids of all ages, even kids who can't read, really just sort of thumbing through and seeing some of those vivid, you know, velvet illustrations of these stories. And the other note, too, is he did a fair amount of historical research on his own to ensure that the illustrations were historically accurate. So the men and women that were gathered around, for instance, Thomas Jefferson's deathbed, I mean, those come from memoirs. We know for the most part, who was around his death at the time, and those are reflected in his illustrations.

[Scott Bertram]

Janie, you're a mom of, of three and written this wonderful children's book. How would you encourage parents to use heroes of 1776 to maybe begin or continue talk about the founding, especially as we hear a lot about America 250 and the meaning of America today?

[Janie Nitze]

Well, this is a topic I feel very strongly about, having three young kids. I think civic education in this country is in a state of a crisis, as recognized on a bipartisan basis at this point. I could throw some statistics out here, but just for example, 18% of liberal arts colleges require a US history course. Over 80% do not require US history course, any course to graduate college 8th graders graduating 8th graders only 13% are proficient in US history, 22% proficient in civics. I no longer think that we as parents can rely on our schools necessarily to teach important subjects like US History, civics, civility, virtues. And I got good advice, you know, when I became a parent, said, you know, beyond the essentials of shelter and food and love, the most important thing you can do to your kids or for your kids really, is to read to them and to provide them good books. And so I hope that in the especially in the context of the civic education crisis, that this book can help parents who would like their kids to learn about our history, you know, start that journey. And this is not a full comprehensive, of course, story, but hopefully it whets kids appetites and they see again, through human stories, some of what it took to found our nation.

[Scott Bertram]

Janie Nitze is co author, along with Supreme Court Justice Neil Gorsuch, of the new children's book Heroes of 1776 the Story of the Declaration of Independence. Janie, thanks so much for joining us here on the Radio Free Hillsdale Hour.

[Janie Nitze]

Thank you so much. Really appreciate it.

[Radio Free Hillsdale Hour Host (Scott Bertram)]

That will wrap up this edition of the Radio Free Hillsdale Hour. Our thanks to Molly Hemingway, her new book Alito and Janie Nitza and heroes of 1776. Remember, you can hear new episodes every week on this station. You also can find a extended versions of some of our interviews or listen anytime to the podcast at Podcast Hillsdale. Edu or wherever you get your audio. Until next week, I'm Scott Bertram and this has been the Radio Free Hillsdale Hour.