← Relatable with Allie Beth Stuckey
Relatable with Allie Beth Stuckey
Ep 1337 | Journalist Reveals Justice’s Embarrassing Tantrum— & other Untold SCOTUS Stories | Mollie Hemingway
01:07:01
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- [00:01]
Ali Stuckey
How will the court rule on birthright citizenship? Also, who leaked the Dobbs decision in May of 2022? And why is Samuel Alito the Supreme Court justice that really holds the Supreme Court together? We are talking about this and so much more on today's amazing episode of Relatable. We've got journalist Molly Hemingway here to discuss her new book, Alito. She's got all kinds of juicy details about how the process at the Supreme Court works, who Justice Alito actually is, and what we can learn about his life and how he approaches justice. This episode is brought to you by Kexi Cookies. Mother's Day is coming up. It's not always easy to find something that feels thoughtful, but I can tell you the mom in your life, your wife, your mom, your mother in law, will love the cookies from Kexi Cookies, y'. All. They are so good. Made with real ingredients. They've got incredible flavors. You've got to try this out. Go to kexi k-e K-S-I.com use code ally for 15% off kexi.com code ally. Molly Hemingway, thanks so much for taking the time to join us.
- [01:17]
Molly Hemingway
It is wonderful to be here with you.
- [01:18]
Ali Stuckey
Okay, tell me why you're writing a book about Alito.
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Molly Hemingway
So I had written a book with Carrie Severino a couple years ago on the confirmation battle for Justice Kavanaugh. And during the course of writing that book, I studied the court and studied the other justices, and Alita was the one who kept standing out for me. And he's so important, has dealt with so many important cases. And that's only become more true in the years since I first realized this. And yet nobody knows anything about him. And so I was like, this guy has to have his story told and set about to do it.
- [01:52]
Ali Stuckey
Okay. I think most people, when they think of a conservative justice, they think of Clarence Thomas. And that's a lot of people's favorite. I think we would agree for a good reason. But what do people not realize about Alito and his role in bringing the court back to the Constitution?
- [02:09]
Molly Hemingway
Well, Clarence Thomas is wonderful and deserves all of the praise that he gets from people. You know, things like he does not get bullied by media pressure. He just rules according to what the law dictates, not according to. Yeah, again, that peer pressure or other concerns. And he has such a beautiful originalist philosophy. And so Thomas is great and he and Alito are very close on the court. And they also tend to rule together. They tend to be on the same side of decisions. But Justice Alito, I think in the book I put that, whereas Clarence Thomas and his chambers are more like the aircraft carrier. They stake out a position and they stay there. Alito and his chambers are more like the Green Berets. They get in there and they do the work to ready for greater impact. And so Alito is more about the day to day. He's more about the practical questions. Like Justice Thomas, he knows where he wants to land and he just says it and he stays there. Whereas Alito thinks, well, if that's where we want to be, how are we going to get there? What kind of cases can we agree to hear that would move the Court in the direction that we should be? So they work in a very complimentary fashion.
- [03:25]
Ali Stuckey
Tell me how that played out in the Dobbs decision, the decision that overturned Roe v. Wade.
- [03:30]
Molly Hemingway
The Dobbs decision is just such a, such a big case. It had polluted the Court and had polluted political discussion for literally 50 years. Everyone knew that case was a problem. Everyone knew from the moment it was decided. Even people on the left admitted this decision isn't even trying to be constitutional law. It's just, it's a weird decision. But then because the left so greatly wanted to believe that they had a right to kill unborn children, they just moved heaven and earth to keep that decision, even when it shouldn't have really been lasting for one year, much less 50 years.
- [04:11]
Ali Stuckey
Because Roe v. Wade was decided on some like hidden penumbra of the 14th Amendment, that the right to privacy meant you have a right to an abortion, also predicated on this idea of like viability, that in the first trimester it's this, on the second trimester it's this. So it was always very slippery, but we heard from the laugh forever. No, this is concrete, constitutional, scientific law. So you're saying within at least the judicial community and especially on the Supreme Court, this was not ever really a done deal. That was just a foregone conclusion.
- [04:46]
Molly Hemingway
Well, the entire, the entire situation with Roe was a mistake from the very beginning. You'd had two justices resign and then die within a couple months.
- [04:55]
Ali Stuckey
Yeah.
- [04:55]
Molly Hemingway
And so the Court was short. Chief Justice Berger had a subcommittee on the Court. He said, just pick cases that will be easy for us to do while we're short staffed. Instead, they literally pick Roe v. Wade. They thought it was going to be a simple case. They didn't imagine that it would turn into what it was. And then the decision itself was just an absolute mess and there were opportunities to overturn it. You had an entire Pro life movement that was built. I mean, it had started prior to Roe v. Wade, but that really got it going when they said, this is ridiculous, that the Supreme Court could say, hidden in between the words of the 14th Amendment, there is this right to privacy that means that you have a right to kill an unborn child. It was absurd, absurd reasoning. But everything started being positioned around that issue. Confirmation battles. If the left thought that a Justice might overturn Roe, they would fight that nomination viciously. And even that pressure then came to bear on the Court. You might remember that There was a 1992 decision called Casey, which was the pro life and conservative legal movements best opportunity to overturn Roe. And at that point you had. Almost everybody had been nominated by a Republican. They were all supposed to be pretty good. I think maybe the only Democrat was Byron White and he had. Or was Rehnquist and he had. He had voted against Roe v. Wade. And yet what did they do? A group of three justices try to preserve Roe by saying, well, maybe the original people got it wrong. It's not a right to privacy that's hidden in the 14th amendment. It comes from this liberty concern in the 14th amendment. And so they redraft Roe and then they tell everybody, you can't fight us on this, you just have to accept it. While the American public said, well, who makes you king of this? The whole point is we want to be able to fight about this. We do want to be able to advocate for the abortion laws that we think are good. So after 50 years and all the pressure that had been put against the Court, it was really important that the decision be done. Well, now it was a kind of complicated process how Dobbs even came to the Court and how it came to be heard. But when it was finally heard, you had five Justices who said, it's time to overturn Roe. It was always a mess. It's still a mess now in the Court. The Chief justice gets to assign the opinion to whomever he wants to assign it to, but he doesn't get that to do that if he's not in the majority. And Chief Justice Roberts was not in the majority. So then it goes to the next senior justice, and that is Clarence Thomas. Clarence Thomas already had a big decision
- [07:38]
Ali Stuckey
for the term the majority. When you say the majority, you're talking about not right versus Left, you're talking about in the majority opinion.
- [07:45]
Molly Hemingway
Yes.
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Ali Stuckey
So Justice Roberts was not.
- [07:47]
Molly Hemingway
So they heard the case and there were five Justices who didn't just want to uphold the law in question, which was a Mississippi Law protecting most children who had reached 15 weeks gestation. They also wanted to overturn Roe. Chief Justice Roberts did want to uphold the Mississippi law, but he did not want to overturn Roe. So the opinion from the Court had to come from those five who wanted to overturn it. Thomas got to decide. And Thomas chose Alito. And he chose Alito because he knew not only did he have a big case, that term that he was writing, but he knew Alito would do it perfectly and that he would have the courage to do it. It's difficult to say in the pressure, in the face of all the pressure from the media, all the pressure from the left, we're going to do this. And here's why. This was never constitutional. This was never something the Court should have done. This is something we have to correct. He looked through the history of abortion law throughout the country's history. He looked at the history at the time that the 14th amendment was passed, since that was the basis on which they had previously said there was this hidden right to abortion. And he did it exhaustively. He kept the majority together. Different justices want different things in an opinion and on something as sensitive as this, it really mattered to people. So for Kavanaugh, for instance, it really mattered to him that people understood that the court does overturn previous rulings. And that is something that can happen even as they respect precedent. You know, Brown v. Board of Education overturned Plessy B. Ferguson to correct a really bad decision that the court had made. And that also took almost 50 years. And he wanted stuff like that in there. Alito was the masterful person who put it all in there together and Thomas knew he would do it. But there's another reason why it was important. Thomas has a very peculiar and probably correct view that the way that the 14th Amendment is applied by the Supreme Court, that the way they've been doing it for literally 100 plus years is wrong. He thinks. And he knew that if he wrote the opinion he would want to talk about that. So instead Alito writes it and lets Thomas write a concurrence where he gets to push his point about the 14th Amendment. Foreign.
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Ali Stuckey
Is alliance defending freedom. I've talked to you about ADF a lot. We've had their attorneys on this show, the CEO, they are doing incredible work in the fight for life and the fight for our first Amendment rights, the fight for women and girls. Let me tell you something that's going on right now. Under the Biden admin FDA made high risk abortion pills available by mail in an attempt to Evade state laws protecting life. Now anyone can get them, including abusers, bad actors. In Texas, Catherine Herring's ex husband attempted to poison her with abortion pills seven times. Miraculously, her baby survived. And right now they are telling Katherine's story. They are trying to get the word out about this and they are pushing the FDA to reverse this so that these mail order abortions cannot happen and stories like Catherine's won't happen anymore. If you go to joinadf.com ali donate and you will have your gift matched today. That's joinadf.com Ali. Going back to your analogy of like the Green Beret analogy, it seems like Thomas picked him for that reason because he knew he was gonna lay out, okay, this is where we're going to go. But this is why, and particularly in this kind of decision, when you have so many people who for so long have said, like Hillary Clinton, this is the law of the land, it's a foregone conclusion to be able to method, methodologically say, this is why we're doing this and you can't accuse us of not thinking lawfully and constitutionally about this. So that's why he was really the perfect person to write the majority opinion.
- [11:49]
Molly Hemingway
Right. And I will say that when he. So once you write the opinion, you send it out to all the justices so that they can decide whether to sign on to it officially and also so that the people who are going to dissent from that opinion and can write their dissent knowing what the majority opinion says. Well, when he sent that out in early February of 2022, the justices who were planning to dissent from that were shocked by how exhaustive it was. Like they knew what was going to happen because they'd already taken the vote, but they did not expect that it would be this masterpiece work where there was no argument left standing and just interesting.
- [12:33]
Ali Stuckey
And is that why one of them presumably allowed it to leak?
- [12:38]
Molly Hemingway
So the leak is interesting. I mean, you have in the draft decision which was ultimately leaked, was distributed to the court in early February, but it doesn't leak until early May of the same year. And they have not determined who the leaker is. Although I will say that nobody I spoke with in any way thought it was one of the justices. And most people, you know, if they were speculating about it would say a particular clerk or maybe a member of the staff.
- [13:12]
Ali Stuckey
Right. Do you think that there has been a thorough enough investigation?
- [13:15]
Molly Hemingway
Oh, not at all. There was never a thorough investigation.
- [13:19]
Ali Stuckey
I don't know any other instance. You probably do. Of a Supreme Court decision being leaked to the public. So I don't even know how that works to suss that out.
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Molly Hemingway
Now, in the history of the court, there have been many leaks, but usually not many. There have been some leaks, and it's a long history of the court. Usually it's something like what the actual vote was or which side won. Sometimes there are memos that are leaked, but never in the entire history of the court has a complete draft decision leaked. And it was a massive deal. The day after the leak was published by Politico, you had Chief Justice Roberts, maybe even it was the same day he condemned the leak, said that the court would not be bullied, and he said, there will be a thorough investigation, but that really just never happened. The marshal of the court and her staff kind of waited a while to get the investigation going. The type of questions that they asked were probably not the best. So they did eventually release a report. And they said, well, we asked everybody, and they said they didn't leak it. Well, any investigator knows that's not the way to go. I mean, you ask, hey, did you rob that bank? Nope. Okay. Case closed. You know, you have to think about how the questions are being framed. You know, do you know this reporter who leaked this? Do you know, are you close to anyone who knows that reporter who leaked it or who published the leak? You have to ask questions. And these people do. Supreme Court clerks generally presumably try to tell the truth about what they're doing, and there could have been better questions. They also waited weeks to even find out the process. You know, how was this draft opinion disseminated? Who had access to it? What are the different ways of having access to it? And so it was very frustrating for the people who abhorred the leak, how weak and late that investigation was.
- [15:17]
Ali Stuckey
What do you think the motivation is behind the weakness of the investigation?
- [15:23]
Molly Hemingway
I'm not questioning the motivation of the marshal. It just was not given the urgency.
- [15:28]
Ali Stuckey
You don't know why.
- [15:29]
Molly Hemingway
Yeah. Or the. It just should have been handled.
- [15:32]
Ali Stuckey
It should have been more thorough. Yeah, go ahead.
- [15:34]
Molly Hemingway
And the thing is, you know, the number one thing I would say about this is the court has a culture of being discreet. It is very important because so much rides on that discretion. A lot of the cases they're dealing with could affect billions of dollars in industry or massive political movements. You have to keep things quiet so people can deliberate in private. And also, a decision is not final until it is handed down from the bench. This is why this leak was so awful, is that there was, you know, Quote, unquote, only a five person majority. We know that immediately the Justices faced death threats, serious threats on their lives. They all had to be moved or be under a great deal of protection, increase their security posture, because if any one of them had been killed and there was a man who was prosecuted successfully for trying to kill Brett Kavanaugh, one of those five, if they had been successful, that would have meant that the Dobbs decision would not have been handed down in the way it was. There would no longer have been a majority there. And so the culture there is the number one issue in play for how to protect things. If you want to leak, there are a million ways you can leak. I mean, I've sometimes thought. I mean, I've heard various speculation from various people, but ultimately, the only way I believe you'll know for certain who leaked it is if that person comes forward and admits it themselves, and they might have incentive to do so. The left always treated the leaker like a hero. You know, in the moment it happened, they were praising it. You might remember everyone on the left said, this person is a hero. They're getting the court to be. You know, they burned down the court. And it's wonderful. People on the right were immediately alarmed and immediately alarmed for the safety of the Justices. So that might happen.
- [17:24]
Ali Stuckey
And it's hard for me, and this is Ali Stuckey's opinion here and speculation. It's hard for me to see any other motivation behind the leak. Whoever it was, we don't know, except to do exactly what you said could have happened if someone had been killed. If someone had been murdered, then there wouldn't have been a majority. I'm not really sure what other motivation you would have, maybe to gin up enough outrage to then pressure the Justices to make a different decision and publish a different decision. Yes, maybe it's too far to say that they wanted one of them to be harmed and murdered, but obviously that was almost a consequence of what happened.
- [18:03]
Molly Hemingway
Well, I would say the Laker almost certainly wanted that decision not to be handed down. Whether they actually hoped for the murder of one of the majority, or whether they simply thought, well, if we get this leak out here and we gin up our troops to be outraged and cause all sorts of problems which happened immediately, maybe the weaker justices will be able to be peeled away. And there had been an effort by Justice Breyer, you know, who was with the dissent, and Chief Justice Roberts, who didn't want to overturn Roe to get Kavanaugh, for instance, to side with them. If they could peel him away. That also would have kept Roe from being overturned. You saw in some of the media coverage that some people thought that the goal of the leak was to either tone down that majority opinion or get one of the weaker justices to pull
- [18:55]
Ali Stuckey
away, which is mob rule. And unfortunately, that's a pattern that we see from a lot of people on the left. Again, I'm not even saying the justices on the Supreme Court, but just the media and the actions, activists hoping to use their voice and to use pressure and to use anger to. I mean, and they say that they're upholding the institutions of democracy and they're the ones that try to bully in order to get their way.
- [19:17]
Molly Hemingway
This is a major issue facing the court right now. The founders wrote the Constitution to have the justices be inured from that political pressure. They were. They're not elected. They have lifetime appointments. They are not supposed to be treated the way members of the House of Representatives or the President are treated. But the left has viewed this as a vulnerability that they can exploit because they're not political. They think, well, we could just run political campaigns against these people and cause them to weaken. Unfortunately, it frequently works. You've heard maybe about the Greenhouse effect on the Supreme Court. This is named for Linda Greenhouse, who is the longtime Supreme Court reporter. She would flatter a Republican appointed justice if they ruled against the conservative position. She would vilify them if they ruled for the conservative position. And unfortunately, there are people out there who seek to be loved by people at the New York Times. And so they would end up moderating. It is very rare to see a Supreme Court justice become more conservative over his or her time on the court. Or, you know, we certainly went through decades where that was rare.
- [20:35]
Ali Stuckey
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- [21:58]
Molly Hemingway
Well, and that is one of the things that you've started to see people being screened for when they are considered for a federal judge position or a Supreme Court position. It is not sufficient to be ideologically correct or have the proper judicial philosophy. Because if you cannot withstand pressure, and there is probably no greater pressure on earth than what these Republican appointed justices have had to deal with, if you can't withstand pressure, you will not make it. You will immediately cave to the, to the whims of the left. And so you're starting to see the Republican Party be a little smarter about how they screen for that in picking federal judges.
- [22:38]
Ali Stuckey
And Thomas is really seen as someone who's just like, I don't care. I mean, from the time that he had to go through his initial hearing, he had to go through so much media pushback and political witch hunt and everything. But Alito, even if he's less known, he's the same way. He seems completely impervious to what the public thinks about him or what the media writes about him.
- [22:58]
Molly Hemingway
He does not seek acclaim from people he does not respect. And so that would include the vast majority of the media, perhaps all of the media. He cares deeply about being a judge. And so he is impervious to that political pressure that has been applied to him, you know, now for quite a few years on the court. You have to have that if you're gonna make it. And for something like Roe, there's one thing about this that I'm a little concerned about. For the future. To overturn Roe took not just moral courage, but physical courage. There were immediate and direct threats to the lives of the Justices and their families. And it's one thing to have the courage to do what you should do under physical threat to yourself. It's entirely another to put your wife or husband and children through that as well. And I think that going forward, that aspect of the left's campaign to bully the court, unfortunately, will probably have some success because it would be hard for people to be voluntarily taking a relatively low salary compared to what they could get anywhere else, just so that their spouse and kids might be killed by people on the left. With the full support of many people in the corporate media, do you think
- [24:14]
Ali Stuckey
that we can anticipate seeing more leaks?
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Molly Hemingway
Well, I'm not sure. It really was a rare occurrence and it was a major issue. Abortion motivates the left like few other things do. It really does dominate the choices they make and how they pursue things. But there are issues of concern with the leak, in part because the leaker was not officially caught, even if people think they may know who he or she was. And so. So that lack of accountability and punishment for that, the person who did it should be removed from the bar, should not be treated properly by the. Or they should be treated properly by the legal community, which is to say that they violated a great deal of trust, but that trust is built over a long period of time. This violation, I think, is an anomaly. One of the things that does concern me though is kind of a new issue, which is betting markets. We have seen this with some aspects of the war against Iran that people with advanced knowledge of certain things that would happen have been placing bets on those markets and getting huge payouts. Well, again, you think about Supreme Court decisions, they can really affect major issues, major companies, major financial concerns. And I could see that being a problem where the betting markets are in play.
- [25:38]
Ali Stuckey
That's a huge problem. I mean, gambling is a huge problem in general, and we could go on and on about that, but I hadn't really thought about how it could affect things like this. But you see it possibly having repercussions.
- [25:50]
Molly Hemingway
I do. And there's another issue, which is that our law schools are so dominated by left wing activists that they are turning out people who are inclined to do things like leak draft opinions or worse, because they believe so purely in power that anything is justified.
- [26:07]
Ali Stuckey
And.
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Molly Hemingway
And you're seeing that at even elite law schools, the type of schools that produce the clerks for the court.
- [26:13]
Ali Stuckey
Yeah, being an activist is the most important thing, especially when you see these people lauded as heroes like the leaker. And then again, it just gets me that progressives accuse the right of only wanting power, of not caring about democracy, not caring about institutions and norms and history and all of those things. But it seems consistently like it is the left wing advocate who will do absolutely anything, trample on any part of history or institution just to make sure that they get their way.
- [26:42]
Molly Hemingway
Well, and you look at the history of the court we had prior to Recent decades, we had quite a few decades of the Court being basically a super legislature where they believed that anything that they couldn't get passed through the ballot box, they would just have the Supreme Court handle. And it wasn't like the Court went back and forth between the left and the right. The left just had complete domination. It took the conservative legal movement a lot of time, energy, effort, refinement, to finally get a court with a majority of originalist justices and to have a court that has returned to this idea that they are not a legislature, they are not pushing their own political agenda. They're looking at the Constitution and the laws of the land and interpreting that law according to a consistent, coherent philosophy.
- [27:31]
Ali Stuckey
I have a couple other questions about Dobbs, because, as you said, such a fascinating case where we really saw all different aspects of the Supreme Court, how each justice decides. I want to talk about the deliberations a little bit because you have an opinion or thoughts on the Solicitor General of Mississippi, who is defending the state of Mississippi at the time. What are your thoughts on how that went down?
- [27:52]
Molly Hemingway
Well, in the book, I kind of tell the whole story of the Dobbs decision going back to the original Roe v. Wade decision that was handed down in 1973. I think Scott Stewart, the Solicitor General of Mississippi, is a really impressive figure. He kind of gets thrown into this role. At the time that he takes the position of Solicitor General, he knew that Mississippi had this case going down the pike, but he didn't really think it would become a big thing. He takes the role and realizes, oh, I'm going to have to deal with what the Supreme Court has to say about this. They kind of expected the Supreme Court would just say, we're not going to consider this. We're not going to grant your appeal here to the Supreme Court. Instead, after waiting nearly a year, they find out, oh, the Court is going to take it. So Stewart has to start preparing to hear those arguments. So I go through the whole story of how he did to prepare those arguments. One of the things I want to point out is that every elite lawyer in D.C. told him, do not ask for Roe v. Wade to be overturned. But Stewart had looked at what, what every justice had said on related abortion cases. He got the feeling they really wanted someone to ask to overturn Roe v. Wade. And he said, no, we're doing it. We're going hard. Then same group of elite lawyers say, well, if you do ask for that, you have to give them an off ramp. You have to give them a way to uphold the law. Without overturning Roe v. Wade, the Chief Justice Roberts option. And he was like, no, I'm not gonna do that. I want them to do something tough. And if they're gonna do something tough, I have to do something difficult as well. I'm gonna ask them to overturn it. So just learning kind of the backstory about how he prepared for that, who all was involved with the effort, and how that went down, I thought was really interesting. Also interesting is that the Supreme Court gets literally, like 10,000 requests a year to hear a case, but they only hear fewer than 70. So the vast majority of cases that someone wants to go to the Supreme Court, they don't make it. Well, they waited a year. This case was relisted and rescheduled, which are two different ways you can kind of delay a decision on whether to hear a case or not. They did this in part because Ruth Bader Ginsburg died just before they were about to consider whether to take this. And they just kept discussing it over the course of much of the year, and they delayed even announcing that they were going to take the case until the end of the term. And hearing about who was on board with that. Amy Coney Barrett was originally on board with hearing the case, but then she dropped her support for it. All that kind of stuff is very interesting.
- [30:36]
Ali Stuckey
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- [32:12]
Molly Hemingway
So I kind of want to explain that part of the process too. Once, once you decide to hear a case, then you have the different sides the of provide a lot of, they provide a briefing, you know what their arguments are, and you have friends of the court also weigh in. Then you have a day set for oral argument. That's where each side usually gets a half hour each side. It's a little bit more for the Dobbs decision. And then after that, shortly after that, all of the Justices vote on which side they're going to take. And then from that you assign the opinion. And so the opinion was assigned to Justice Alito in mid December. He gets it done by early February. Now, unbeknownst initially to the other justices, he was working with the other chambers constantly to make sure that when he released that when he got his draft together, that they were all on board with it. So he early February sends out the draft within I think it was five minutes, Gorsuch signed onto it. That's when the liberal justices realized, oh, they were, they were working together prior to this. All the other justices sign on within short order. But that meant they had that dissent or they had that opinion in early February. How much time did they need? It's not like this is a question that nobody has considered before defending Roe v. Wade or overturning it. By May 2, when it leaks, they still hadn't sent out their dissent, which they would normally send to all of the Justices. So then the majority can respond to what they say in the dissent. So at the next conference, Alito. Actually, at the next conference, there's a way of grading decisions which I don't think people really know, which is you are.
- [33:56]
Ali Stuckey
The conference is literally them just coming together to talk.
- [33:59]
Molly Hemingway
The judicial. Sorry, the conference is just the nine justices themselves, nobody else.
- [34:04]
Ali Stuckey
Okay. No clerks, no nothing.
- [34:06]
Molly Hemingway
No clerks, no staff, nothing. And so in that conference, are they
- [34:11]
Ali Stuckey
wearing regular clothes during this time?
- [34:14]
Molly Hemingway
Yes, they do not wear.
- [34:15]
Ali Stuckey
Okay.
- [34:15]
Molly Hemingway
They don't wear their robes. Only when they're on the bench.
- [34:18]
Ali Stuckey
Just try to get the picture in my head.
- [34:19]
Molly Hemingway
That would be great. But so during that conference, Roberts announces that the Dobbs decision is rated a C. You can be rated A B or C. A is when both the majority opinion and the dissent and whatever concurrences are done. B is when they're almost done and C is when they're nowhere near done. Dobbs was rated a C. Wow. Meaning they hadn't even. They were delaying the dissemination of this.
- [34:52]
Ali Stuckey
Do we know why?
- [34:53]
Molly Hemingway
Just curious. I'll just point that out. It's curious.
- [34:55]
Ali Stuckey
Curious.
- [34:56]
Molly Hemingway
So Alito asks if they can wrap it up because left wing activists have a motivation to kill them and they want. That's a concern to the conservative justices and they wouldn't, they didn't want to. Gorsuch asks, can you get it done by a certain date or give us a date? They wouldn't agree to anything after that. According to my sources. Kagan goes to Justice Breyer's chambers and Breyer hadn't said he would accommodate his conservative colleagues by getting an opinion out, but he was far and away the person most likely to do so. He was solid, progressive, former Ted Kennedy staffer. His left wing credentials are not in doubt, but he was a decent, nice guy who cared about his colleagues. And according to my sources, Kagan goes to his chambers and screams at him not to in any way accommodate this request. As one person put it, the walls were shaking. And sure enough, they.
- [35:58]
Ali Stuckey
And we don't know why, we don't know what she was screaming exactly.
- [36:01]
Molly Hemingway
She just did not want any rush of the decision which had already been.
- [36:05]
Ali Stuckey
It wasn't over the rush.
- [36:07]
Molly Hemingway
It had already been, you know, three months. So they finally get them to agree to get everything together by June 1, meaning that the justices would only have their lives threatened on a continuous day to day basis for one month. And when they finally get their dissent done, they make a gratuitous reference to, to a different decision that was totally unnecessary. It was a New York State rifle decision. And they knew that case wouldn't be handed down until the very end of the term. So they put that in there just so that they could delay it even further.
- [36:41]
Ali Stuckey
Put that in where?
- [36:42]
Molly Hemingway
They put that in their dissent. They put that mention of this other
- [36:46]
Ali Stuckey
decision that they knew would be controversial.
- [36:49]
Molly Hemingway
That they knew would be controversial and not. No, they knew it wouldn't be handed down from the court until later in June.
- [36:55]
Ali Stuckey
Okay.
- [36:56]
Molly Hemingway
So they didn't need to mention this other case. They do it gratuitously because they know it will further delay that decision being handed down. So the final Dobbs decision isn't released until like June 24th. And this is day to day attacks on these justices lives. You have Amy Coney Barrett having to put on a bulletproof vest in front of her children. You have justices being moved to secure locations or having to to greatly increase their security fencing. And it seemed to the justices and their staff that the left wing justices really didn't care about what they were going through.
- [37:34]
Ali Stuckey
And why would the official release of the decision along with the dissent stop those threats?
- [37:39]
Molly Hemingway
Because once it's handed down, there's no longer the same incentive. It didn't stop the threats, but it would decrease them.
- [37:45]
Ali Stuckey
Cause it's done.
- [37:46]
Molly Hemingway
Because it's done. And even if you kill, killed Justice Alito on that day, it had already been handed down. So scary. It's horrifying. And also, I just want to point out, like, what they went through was truly horrible. And the media were kind of blase about it, as were other people. Congress should have stepped in. You had Merrick Garland, the attorney general, not really caring at all. There are federal laws in place that you are not to protest a federal judge or, you know, Supreme Court justice to affect the outcome of a decision. He had plenty of resources. And instead, I mean, you might remember the Biden administration came out and said, well, we think these protests are mostly peaceful and so keep it going.
- [38:28]
Ali Stuckey
Yeah.
- [38:29]
Molly Hemingway
I mean, it was just the lack of concern. And these are. The other thing about this is the justices don't have PR firms. They don't have even a communication staffer to kind of help craft messages or get things out.
- [38:41]
Ali Stuckey
They're not high powered celebrities.
- [38:43]
Molly Hemingway
They were completely alone and nobody really came to their defense.
- [38:46]
Ali Stuckey
Yeah. And their families don't, you know, always have 24, 7 security surrounding them. They're just regular people.
- [38:52]
Molly Hemingway
Well, and they were going after children, both adult and minor children. It was, it was a really bad thing. Also, I don't know if people remember, they were attacking pro life clinics, pregnancy and firebombing them and being proud about it. There were hundreds of attacks on Christian churches. It was a really dark time.
- [39:11]
Ali Stuckey
And they used the Biden administration, used the FACE act to go after actual peaceful pro life protesters and praying and things like that, but didn't use the FACE act to go after the people that were violating these pregnancy centers. Which is why I'm thankful that now the administration is doing the opposite of that. They're going after those who are firebombing. But it just, I mean, it goes to show that at least some on the left in the activist class and the political class. It's almost like this belief that, well, that's kind of what you get. That's kind of what you get if you're gonna take away our right to kill babies. Sorry. That's what you get.
- [39:47]
Molly Hemingway
There definitely was this. Ends justify the means. Even if you. You heard what some of the protesters outside Justice Kavanaugh's home were saying. They said, well, if he takes away my right to kill a baby, he doesn't get the right to sleep at night.
- [39:59]
Ali Stuckey
To live. Right.
- [40:00]
Molly Hemingway
Yeah.
- [40:00]
Ali Stuckey
Wearing their handmaid's tails or handmaid's tail costumes and things like that.
- [40:05]
Molly Hemingway
Bed.
- [40:10]
Ali Stuckey
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- [41:45]
Molly Hemingway
So Alito wrote this exhaustive opinion in Dobbs looking at everything that the court had done about abortion jurisprudence, looking at the history of abortion law in the United States. And his main point was that the Constitution does not anywhere say that you have the right to abort a Child. And the Constitution also says to allow the people the right to set their own laws. A lot of people, I think, through media hysteria or other hysteria, thought that the Dobbs decision overturned abortion laws or meaning that they. That it said that abortion overturned abortion. Abortion is no longer legal. It actually didn't. It was a very moderate. Many pro lifers might have wished it had said something like that. Instead, it said the people have the right to set their own abortion laws because it's not mentioned in the Constitution. They can do that at the ballot box. They can do that through their state or federal legislature, but they have that right. And that is the main takeaway. And that is something that's important for people to realize. The courts are not there to push through policies or laws that they wish the people had passed. The court is there to be. To hold to the Constitution, which is unchanging, and to protect the right of the people to govern themselves.
- [43:07]
Ali Stuckey
Which does not mean that it must be a state's issue. He's just saying that it has to be a people issue. So if people said, okay, we actually do want a federal ban on abortion, and through Congress we were able to pass a constitutional amendment or Congress was able to do that or pass a law ban on abortion, we could do that. So his wasn't. Well, it's just. Just states rights. It wasn't really anything about what the federal government could do. It was just. It's not the court's place to ban it or to decide. Right.
- [43:35]
Molly Hemingway
And that is one of the misconceptions people have about the Dobbs decision. They think it was returned solely to the states. No, it was returned to the people. The people can work on this at the local level, at the state level, or at the federal level, but it's the people who get to set the law.
- [43:51]
Ali Stuckey
Can you talk a little bit more about meeting Alito? Because you got to interview him. You interviewed hundreds of people for this book, but you met Alito and what you learned about him that you didn't know before.
- [44:03]
Molly Hemingway
So I interviewed almost 100 people for the book, and I did interview quite a few justices just as a matter of course. I don't say which justices I've spoken to. I have met Justice Alito and have had interesting interactions with him. But in some ways, the most interesting discussions were with these other people. Federal judges who had clerked for him at one time or his former clerks who are now at law schools. Those kinds of discussions where people just opened up and showed how much they love this man. I loved Being able to tell some of those stories. He's incredibly reserved, unlike one of the things Scalia had said when he came onto the court. When Alito came onto the court was how remarkable a shy Supreme Court justice. He's not like all the others. They're sometimes very focused on celebrity. So you look at a Sonia Sotomayor or Ketanji Brown Jackson, they're on Sesame street, they're on different TV shows, they're performing in Broadway plays. They have, you know, Ruth Bader Ginsburg had children's books written about her. She would lift some weights, and it was like a major story in publications. Alito is very devoted to his wife, their children, his grandchildren. He does not seek acclaim like you'll go to a party with high profile people. He's not trying to be the center of attention. He's listening to what other people have to say. But I love being able to tell some of those stories about his very dry sense of humor.
- [45:34]
Ali Stuckey
Can you tell one of them?
- [45:35]
Molly Hemingway
I mean, this is kind of a silly one, but he took his clerks to the Shakespeare Library, which was having an exhibit on the Magna Carta. Magna Carta. And there had been a rap album named the Magna Carta. So the docent is telling them about the rap album, and he replied, what's a rapper? And let it just lie for a minute. She didn't know if he was serious or not. He was clearly joking. I mean, just silly things like this, but he just lets it say. But also touching things. You know, one of the clerks, her daughter had made a little bracelet for him that said S a a his initials with wire and little beads. And so she had dutifully given the daughter's gift to Justice Alito. Well, the daughter came in, little girl to the chambers a few months later, and he slips back into his office, puts on the bracelet and comes out, doesn't say anything, but just let her have the joy of seeing that he had taken it seriously. Sweet. So just nice to have some of those stories being able to be told.
- [46:37]
Ali Stuckey
You've talked about him being kind of like the secret sauce on the conservative side of things for the court. How is that true? How does he hold things together?
- [46:46]
Molly Hemingway
Okay, so it kind of goes back to that aircraft carrier Green Beret analogy. He cares deeply about religious liberty, and he was a federal judge for 15 years before he went on the Supreme Court. He also cared deeply about religious liberty earlier. Well, there have been a lot of bad decisions from the Supreme Court that took away some religious liberty. And he presumably would like to see them overturned. Issues like Employment Division v. Smith, which was actually a rare bad opinion from Justice Scalia, which did not protect, like the peyote, or did not protect the religious rights of Native Americans. And he's kind of had this goal of getting the court to fix that situation. Now there are other justices who share his view on this. They think, well, when that case comes up, when a case comes up, we should just overturn it. But he knows that he won't have a majority if he goes too far. So he slowly moves things in the proper direction. There's something called the Lemon test, which had been a way to violate religious believers rights. He case over case over case, he kind of gets them moving in the right direction. And ultimately Gorsuch was able to take all of the work he'd done to finally overturn the Lemon test. This takes work, it takes strategy, patience. Some people just want to be right and they don't care if they have the majority. They don't care if it actually gets to the proper result. And this is one of the main things that I loved being able to talk about in the book, which is how to balance principle and pragmatism. You have in the conservative movement writ large, but also in the conservative legal movement, people who think, well, the only thing that matters is principle. You just do the, you know, that's the only thing that we should care about. You also have people in the conservative movement and sometimes the conservative legal movement who say, we just have to win. We just have to achieve what we need to achieve, and who cares how we get there? For the conservative movement and the conservative legal movement to be healthy going forward, they need to balance both principle and pragmatism. The whole point of having principles is to help people. And if you're not thinking about how to pragmatically help people with those principles, it's just sound and fury. And he is the model there. And because he's so shy and because he's so reserved, people don't realize what a great model he is. And I think Alito, his story should be known. His humble beginnings, his, you know, his, yes, very impressive education, but his lifetime service as a public servant, not seeking a claim, but delivering win after win after win over his time on the court.
- [49:31]
Ali Stuckey
He's done a ton for religious liberty, especially in the past few years. A lot of these wins that I think some people think, wow, suddenly we just have this like, wave of success. Of course, there's very brilliant lawyers who have brought these cases, argued these cases, but it sounds like you're saying a lot of these wins are actually due to. To decades of work of Alito and, of course, Thomas and other justices as well. But Alito is the one who has kind of laid the groundwork for those wins.
- [49:56]
Molly Hemingway
Exactly. And religious liberty is a big concern for a lot of Americans, and if they care about that, they need to know how much work goes into preserving that.
- [50:05]
Ali Stuckey
How long has he been on the court?
- [50:06]
Molly Hemingway
He was. He's been there since 2006.
- [50:09]
Ali Stuckey
Okay, 2006. And I saw some tweet the other day. I don't even know the source of it, so maybe not reliable, saying that it's possible that he could retire sometime in the next few years. Do you think that's a possibility?
- [50:20]
Molly Hemingway
Oh, I mean, certainly any of the justices can retire at any point for any reason. There's been a lot of pressure to get Thomas or Alito to retire. And the thinking goes that currently you have a Republican president, you have a Republican Senate, so you need to retire now so that Trump can appoint someone who is younger to carry the ball going forward. So I understand the logic of that, although I think it's kind of curious that they're picking out Thomas and Alito when you also have Chief Justice John Roberts in that same age group. And in fact, Chief Justice Roberts has been there longer than Alito, albeit only by a few months, and has also had a much less stellar record of success on the court in terms of what conservatives had hoped to achieve. So I'm not. I do not think it's good to pressure justices to retire. That's a decision I think, think that they should make. But if you were to pressure, maybe pressure, you know, Thomas has already pretty much indicated he would like to go out feet first, and that is because of what the left put him through. And he just does not want to give them a victory. Although I guess you could say it would be a victory if a Democrat is elected and gets to replace him.
- [51:33]
Ali Stuckey
And they're. How old are they? Do you know, off the top of
- [51:36]
Molly Hemingway
your head, I think Thomas is maybe 70. Alito turned 76 this month.
- [51:43]
Ali Stuckey
And that's compared to our presidential standards these days, not too bad.
- [51:48]
Molly Hemingway
And it's even young for a lot of Supreme Court justices who have served into their 90s. But Ruth Bader Ginsburg wanted to retire under a President Hillary Clinton. So she didn't retire under Obama when a lot of people encouraged her to. And Hillary Clinton never became president. And so she ends up dying. And of all indignities for Her Donald Trump ends up appointing her the person to fill her seat.
- [52:20]
Ali Stuckey
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- [53:28]
Molly Hemingway
I think Alito is a young, seemingly young person with a lot of energy. And I would just caution people who are trying to pressure that. Alito and Thomas are undoubtedly the best justices on the court right now, and losing them would be a huge loss because the three Trump appointees, they're still somewhat gaining their foothold. And one hopes that they will increase the amount of courage they have with time and the amount of boldness they have with time, but they have not demonstrated it quite as much as you might have hoped yet.
- [54:03]
Ali Stuckey
Yeah, and that's a little bit of my concern. Obviously, Trump would do a better job of appointing a replacement for Alito or Thomas than a Democrat would, and so we'd be happy about that. But his three appointees so far are not Alito and Thomas. I'm not saying they're all bad, but they're less reliable. We can't say 100% every time. I would have never guessed that Gorsuch would have gone the way that he did on the Bostock case, and that was horrible. And that's been really, really hard for conservatives fighting against that and fighting for Title nine. So I'm a little nervous about who would replace them even under a Trump presidency.
- [54:37]
Molly Hemingway
So now I do. I totally agree. In the box decision, I think is completely indefensible. And Justice Alito, as I tell the story in there, has spoken at length about how much he disagrees with his friend Neil Gorsuch on that decision and why. But it is also true, and this is something I think conservatives should keep in mind. This is undoubtedly the best court we've had in history. It may not be doing as much or as quickly doing it as quickly as people would like, but the caliber of the vast majority of the justices is just so far above what we've seen in our country's history. Their intelligence, their writing ability, their academic credentials, they are not the politicians that we saw in the past on the court. And so people should keep that in mind too. Even with the disappointment that people understandably feel about some of their decisions.
- [55:28]
Ali Stuckey
I like it when they get a little sassy sometimes. And their own intellectual speak. Like, I think that Thomas sometimes when he's talking about, say, Jackson, Justice Jackson and the things that she. That she says, maybe sassy isn't the right word, but he will directly go after, like, you know, in layman speak. This is the most ridiculous thing that I've ever heard. Or that is such a misunderstanding of the law that she's citing. I kind of appreciate when they spar back and forth in that way.
- [55:56]
Molly Hemingway
Yeah, I love when they discuss with each other. It's also true that while Kagan, Justice Kagan is respected by her colleagues and is recognized as an intellectual, I wouldn't say the same is true of her two left wing colleagues, Sotomayor. Sotomayor and Jackson.
- [56:14]
Ali Stuckey
And Sotomayor. I remember what. There was something recently where she totally like, did not understand the science of either. It was reproduction or gender or something like that. She made a really stupid comment, which you expect even when you disagree with someone. Okay, but they're probably smarter than me. But when you read something like that, you're like, I'm not sure. I don't know.
- [56:33]
Molly Hemingway
I will say someone at the court, highly placed, said that Justice Jackson makes Justice Sotomayor look like a philosopher king.
- [56:41]
Ali Stuckey
Uh oh.
- [56:42]
Molly Hemingway
And I wouldn't say that Justice Sotomayor had the best reputation prior to that, even among the left. You might remember when she was nominated, many prominent scholars on the left said, she really is not gonna. She's not gonna convince anybody. She's not gonna persuade. You need a higher caliber justice. And then Justice Jackson. And I don't. I mean, I think people on the left very much like that. She's saying things from the bench that are sassy, but nobody thinks she's persuading anyone. I mean, you saw even say what you want about Justices Kavanaugh and Justice Amy Coney Barrett. They're very polite and civil people.
- [57:17]
Ali Stuckey
Right.
- [57:18]
Molly Hemingway
But even Justice Barrett went after Justice Jackson for her dissent in a case last year. Just saying, like, there is no relationship to the law. There's no mention of the law. This dissent you've had Chief Justice Roberts also very polite, usually to the other justices, admonishing, people don't follow what the dissent says, like it doesn't know what it's talking about when Justice Jackson wrote it. So it's not good. It's probably not good for the left if they want to have influence on the court, to have people like those two justices.
- [57:51]
Ali Stuckey
What do you think is going to happen with the birthright citizenship case?
- [57:54]
Molly Hemingway
I actually got to attend oral argument for that. And normally oral arguments are half hour each side. This was more like an hour each side. And the reason why is because the court has literally never considered this issue before. A lot of people think they can consider this issue with a previous case in the 1930s. That is not true. They have never considered whether people born in this country to people who are not lawful residents or citizens are citizens. And so. So I don't know what exactly what will happen, but I will say that the arguments from the people who oppose this idea that you can be born to people who have allegiance to another country and not the US People who oppose that idea that those people are citizens, they have really strong arguments. And I would not be shocked if they found significant persuasion or persuasiveness. So. And there is, I mean, even just thinking about that, the current popular view of what the law is is not based in actual law, it's based in policy. So it is true that under FDR, there kind of became a policy that if you're born here, you're a citizen. And that's not what the law says. It's more just like an idea that has taken root. And so I will be very curious to see what happens. But that kind of policy, or popular understanding is kind of crazy. Like, we have literally like a million people who were born here but live in China who could run for president.
- [59:31]
Ali Stuckey
Right.
- [59:32]
Molly Hemingway
I mean, that's.
- [59:32]
Ali Stuckey
That is kind of crazy when you think about it.
- [59:34]
Molly Hemingway
Yeah. One of the leaders of a Mexican cartel is officially an American citizen. I mean, the law, as currently understood, is not tenable. And so I think that people might be somewhat. I'm not saying that. I think that the case will be a pure victory for the Trump administration. But I would be shocked, I mean, I would be truly shocked if they said that the radical view of birthright citizenship was in the Constitution.
- [60:03]
Ali Stuckey
Right. And there are a lot of European countries that do not have birthright citizenship. It's very progressive. It's one of the most, I think, progressive parts of our immigration law that we do allow. That it also enables this huge surrogacy industry from places, you know, like the Chinese Communist Party that literally have, like, American surrogates deliver a child that is fully, biologically the child of a Chinese couple. They pay a ton of money to the surrogacy companies and to that woman here. The woman gives birth, ships the child after a few months back to China, and then, you know, they come back here, they train at our universities, fully indoctrinated by the Chinese Communist Party, and then wield all this power, and that would get rid of that. So it's not. To me, this has nothing to do with what the court is going to decide, probably. But just to me, it's not only a citizenship issue, it's a moral issue, and it's child protection issue, because these kids are being used as pawns for political power, for foreign adversaries. And it's wild to me that our law allows that.
- [61:05]
Molly Hemingway
Well, the major case against this idea of birthright citizenship is an originalist case, and five of the justices are originalists. They know that when the 14th Amendment was passed, it was precisely to protect children born of slaves and slaves and the enslaved people. To say that these people are full citizens and they're, you know, full stop. It was not about visitors, temporary visitors, illegal immigrants. So the originalist position is that. But Chief Justice John Roberts, who proudly says he has no political philosophy or judicial philosophy, he does have this view that his former clerks sometimes call A great country wouldn't do this. That's his philosophy, Meaning a great country wouldn't allow a million Chinese citizens to vote in our elections. Or a great country wouldn't. Wouldn't have this weird view of birthright citizenship. So to some extent, that kind of view might be persuasive even with the Chief Justice Roberts. Not like I'm holding my breath for that, but yes.
- [62:07]
Ali Stuckey
Yeah. How likely do you think it is that the Democrats would and could pack the Supreme Court?
- [62:13]
Molly Hemingway
Oh, I think they've been very clear that the moment that they get that power, they are very keen to do that. They really view the Supreme Court as their institution. They loved what happened in the Warren Court and the Burger court in the 50s and 60s and 70s, they loved having control of that. With the dominance of originalist thinking, they have lost that power. And they don't really have like a responsive legal theory to push. They just have more a belief in rule of man instead of rule of law. So what do you do? You pack the court. And even when there was the presidential election in 20, 20, 24 and. Yeah. And starting to hear it even before that, you had a lot of prominent Democrats just openly call for it. So I do think, particularly given the more radicalized nature of the Democrat party, that will become a major issue going forward.
- [63:06]
Ali Stuckey
And for those who don't know, packing the court would be adding a number of seats, however many seats, and then throwing the activist left wing judges on there. And then it becomes much harder for when, you know, Republicans take office to replace those. It's just harder because you suddenly have a liberal majority and you've got more people that you would have to battle against.
- [63:27]
Molly Hemingway
Yeah. And the Constitution does not stipulate the number of justices on the court, interestingly enough, but it has been set for a really long time, you know, since the, you know, early 19th century that it's been at 9. And you had FDR threaten to pack the court. And he wasn't able to achieve that, although he did end up appointing all nine. He served for so long that he ended up appointing all nine justices, but he wanted to do that because he was frustrated that the court was ruling unconstitutional his various New Deal plans. And so packing the court isn't about changing the number of justices on the court, it's about doing it for political gain. And that is what the left has said. If you ruled this way on gun issues, you had, you had members of the Senate threaten the Supreme Court that unless they ruled the way they wanted on a gun case, they were going to pack the court. I mean, it's a horribly awful threat to make. And you had Chuck Schumer also threatening the court from the steps of the Supreme Court itself. But they want to do this because they want to regain control of this court so they can push through things that the people of the country don't want.
- [64:35]
Ali Stuckey
What do you hope that someone who finishes this book, like one thing that they walk away with that would make you just smile?
- [64:41]
Molly Hemingway
Well, I think there are lessons here. Obviously, if you're interested in the Supreme Court, there's a lot of.
- [64:46]
Ali Stuckey
You're gonna love it. Yeah.
- [64:47]
Molly Hemingway
Inside stuff about what goes on there. And I've always loved learning about the court that way. But more than anything, I think it's important for people to understand that principles are important and also how to achieve success with those principles. Principles that. That is also important. And we all should be thinking about that in our day to day life. And we should support people who are properly balanced in that as well. Not one extreme or the other.
- [65:12]
Ali Stuckey
Yeah. You know, that really is just such a good lesson in life. And his model of kind of playing the long game and really trying to, for example, persuade someone. Sometimes persuading someone means not winning that particular argument. It might mean just like planting the seed to push the ball further down the field and it might take a long time. So there's a lesson in patience and endurance there too, and strategy and all different kinds of things. Yeah. That's so good. Thank you so much.
- [65:42]
Molly Hemingway
Thank you so much.
- [65:42]
Ali Stuckey
This is fascinating. People are going to learn so much, but there's a ton of juicy stuff in your book that we did not get to talk to. So if people want more stories, more accounts, even more about the leak, they need to buy your book. And it's available wherever books are sold. Right?
- [65:54]
Molly Hemingway
Exactly. Right. Right.
- [65:55]
Ali Stuckey
Okay, perfect. Thank you so much, Molly.
- [65:57]
Molly Hemingway
Thank you, Ellie. Beth.