Relatable with Allie Beth Stuckey - Ep 1337 ｜ Journalist Reveals Justice’s Embarrassing Tantrum— & other Untold SCOTUS Stories ｜ Mollie Hemingway

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00:00:58.300 donate $15 a month. How will the court rule on birthright citizenship? Also, who leaked the Dobbs 0.99

00:01:06.540 decision in May of 2022? And why is Samuel Alito the Supreme Court justice that really holds the

00:01:15.080 Supreme Court together? We are talking about this and so much more on today's amazing episode of

00:01:21.300 relatable. We've got journalist Molly Hemingway here to discuss her new book, Alito. She's got

00:01:26.600 all kinds of juicy details about how the process at the Supreme Court works and who Justice Alito

00:01:33.120 actually is and what we can learn about his life and how he approaches justice.

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00:02:13.920 Molly Hemingway, thanks so much for taking the time to join us.

00:02:16.640 It is wonderful to be here with you.

00:02:18.500 Okay, tell me why you're writing a book about Alito.

00:02:21.080 So I had written a book with Kerry Severino a couple years ago on the confirmation battle for Justice Kavanaugh.

00:02:28.100 And during the course of writing that book, I studied the court and studied the other justices.

00:02:33.600 And Alito was the one who kept standing out for me.

00:02:36.680 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.

00:02:45.100 And yet nobody knows anything about him.

00:02:47.340 And so I was like, this guy has to have his story told and set about to do it.

00:02:52.260 Okay.

00:02:52.860 I think most people, when they think of a conservative justice, they think of Clarence

00:02:57.200 Thomas.

00:02:57.780 And that's a lot of people's favorite.

00:02:59.980 I think we would agree for a good reason.

00:03:02.200 But what do people not realize about Alito and his role in bringing the court back to

00:03:08.200 the Constitution?

00:03:09.180 Well, Clarence Thomas is wonderful and deserves all of the praise that he gets from people

00:03:14.240 You know, things like he does not get bullied by media pressure. He just rules according to what the law dictates, not according to, again, that peer pressure or other concerns. And he has such a beautiful originalist philosophy. And so Thomas is great.

00:03:32.020 And he and Alito are very close on the court.

00:03:35.200 And they also tend to rule together.

00:03:38.960 They tend to be on the same side of decisions.

00:03:41.380 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.

00:03:52.160 Alito and his chambers are more like the Green Berets.

00:03:54.920 They get in there and they do the work to ready for greater impact.

00:04:00.680 And so Alito is more about the day-to-day.

00:04:03.820 He's more about the practical questions.

00:04:06.680 Like Justice Thomas, he knows where he wants to land, and he just says it, and he stays there.

00:04:11.980 Whereas Alito thinks, well, if that's where we want to be, how are we going to get there?

00:04:15.860 What kind of cases can we agree to hear that would move the court in the direction that we should be?

00:04:22.080 So they work in a very complementary fashion.

00:04:24.940 Tell me how that played out in the Dobbs decision, the decision that overturned Roe v. Wade.

00:04:29.260 Well, the Dobbs decision is just 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 case, this decision isn't even trying to be constitutional law.

00:04:51.980 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.

00:05:11.020 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 lab forever. No, this is concrete, constitutional, scientific law.

00:05:35.680 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.

00:05:45.940 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. Yeah. And so the court was short staffed. 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.

00:06:04.160 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.

00:06:18.580 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.

00:06:36.460 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.

00:06:55.060 You might remember that there was a 1992 decision called Casey, which was the pro-life and conservative legal movement's best opportunity to overturn Roe.

00:07:04.900 And at that point, you had almost everybody had been nominated by a Republican.

00:07:09.620 They were all supposed to be pretty good.

00:07:11.880 I think maybe the only Democrat was Byron White and he had – or was Rehnquist and he had voted against Roe v. Wade.

00:07:22.100 And yet, what did they do?

00:07:24.240 a group of three justices try to preserve Roe by saying, well, maybe the original people got it

00:07:30.120 wrong. It's not a right to privacy that's hidden in the 14th Amendment. It comes from this liberty

00:07:34.560 concern in the 14th Amendment. And so they redraft Roe, and then they tell everybody,

00:07:39.840 you can't fight us on this. You just have to accept it. Well, the American public said,

00:07:44.620 who makes you king of this? The whole point is we want to be able to fight about this. We do want

00:07:50.540 to be able to advocate for the abortion laws that we think are good. So after 50 years and all the

00:07:57.780 pressure that had been put against the court, it was really important that the decision be done

00:08:02.640 well. Now, it was a kind of complicated process how Dobbs even came to the court and how it came

00:08:07.300 to be heard. But when it was finally heard, you had five justices who said, it's time to overturn

00:08:13.500 Roe. It was always a mess. It's still a mess. Now, in the court, the chief justice gets to assign

00:08:20.400 the opinion to whomever he wants to assign it to. But he doesn't get that to do that if he's not in

00:08:26.880 the majority. And Chief Justice Roberts was not in the majority. So then it goes to the next senior

00:08:31.920 justice, and that is Clarence Thomas. Clarence Thomas already had a big decision for the term.

00:08:39.100 In the majority. When you say the majority, you're talking about not right versus left. You're

00:08:42.920 talking about in the majority opinion. Yes. So Justice Roberts was not. So they heard the case

00:08:48.440 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.

00:09:00.380 They also wanted to overturn Roe.

00:09:03.720 Chief Justice Roberts did want to uphold the Mississippi law, but he did not want to overturn Roe.

00:09:09.280 So the opinion from the court had to come from those five who wanted to overturn it.

00:09:15.160 Thomas got to decide and Thomas chose Alito and he chose Alito because he knew not only did he

00:09:22.380 have a big case that term that he was writing but he knew Alito would do it perfectly and that he

00:09:27.880 would have the courage to do it it's difficult to say in the pressure in the face of all the

00:09:33.520 pressure from the media all the pressure from the left we're going to do this and here's why

00:09:37.760 this was never constitutional this was never something the court should have done this is

00:09:42.980 something we have to correct. He looked through the history of abortion law throughout the

00:09:48.100 country's history. He looked at, you know, the history at the time that the 14th Amendment was

00:09:53.380 passed, since that was the basis on which they'd previously said there was this hidden right to

00:09:57.260 abortion. And he did it exhaustively. He kept the majority together. You know, different justices

00:10:03.140 want different things in an opinion. And on something as sensitive as this, it really

00:10:07.900 mattered to people. So for Kavanaugh, for instance, it really mattered to him that people understood

00:10:13.500 that the court does overturn previous rulings. And that is something that can happen even as

00:10:19.220 they respect precedent. You know, Brown versus Board of Education overturned Plessy B. Ferguson

00:10:25.120 to correct a really bad decision that the court had made. And that also took almost 50 years.

00:10:30.380 And he wanted stuff like that in there. Alito was the masterful person who put it all in there

00:10:35.440 together, and Thomas knew he would do it. But there's another reason why it was important.

00:10:41.100 Thomas has a very peculiar and probably correct view that the way that the 14th Amendment is

00:10:47.440 applied by the Supreme Court, that the way they've been doing it for literally 100 plus years is

00:10:54.160 wrong. He thinks, and he knew that if he wrote the opinion, he would want to talk about that.

00:11:00.060 So instead, Alito writes it and lets Thomas write a concurrence where he gets to push his point about

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00:12:15.880 Going back to your analogy of like the Green Beret analogy, it seems like Thomas picked 0.73

00:12:21.600 him for that reason because he knew he was going to lay out, okay, this is where we're 0.71

00:12:26.520 going to go, but this is why.

00:12:28.360 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 methodologically say, this is why we're doing this, and you can't accuse us of not thinking lawfully and constitutionally about this.

00:12:45.460 So that's why he was really the perfect person to write the majority opinion, right?

00:12:49.400 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 can write their dissent knowing what the majority opinion says.

00:13:09.840 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.

00:13:20.440 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.

00:13:30.960 And it's just interesting.

00:13:32.980 And is that why one of them presumably allowed it to leak?

00:13:36.920 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.

00:13:58.320 Although I will say that nobody I spoke with in any way thought it was one of the justices.

00:14:05.080 And most people, you know, if they were speculating about it, would say a particular clerk or maybe a member of the staff.

00:14:12.320 Right. Do you think that there has been a thorough enough investigation?

00:14:16.000 Oh, not at all. There was never a thorough investigation.

00:14:19.320 I don't know any other instance, you probably do, of a Supreme Court decision being leaked to the public.

00:14:25.000 So I don't even know how that works to suss that out.

00:14:27.680 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.

00:14:54.340 The day after the leak was published by Politico, you had Chief Justice Roberts, maybe when 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.

00:15:08.220 But that really just never happened.

00:15:10.700 The marshal of the court and her staff kind of waited a while to get the investigation going.

00:15:16.800 The type of questions that they asked were probably not the best.

00:15:20.000 so they did eventually release a report and they said well we asked everybody and they said they

00:15:25.300 didn't leak it well any investigator knows that's not the way to go i mean you ask hey did you rob

00:15:31.340 that bank nope okay case closed you know you have to think about how the questions are being framed

00:15:36.840 uh you know do you know this reporter who leaked this do you know are you close to anyone who knows

00:15:44.480 that reporter who leaked it or who published the leak. You have to ask questions. And these people

00:15:50.180 do, Supreme Court clerks generally, presumably try to tell the truth about what they're doing.

00:15:56.100 And there could have been better questions. They also waited weeks to even find out the process.

00:16:01.300 You know, how was this draft opinion disseminated? Who had access to it? What are the different ways

00:16:07.820 of having access to it? And so it was very frustrating for the people who abhorred the leak,

00:16:12.820 how weak and late that investigation was.

00:16:16.940 What do you think the motivation is

00:16:18.580 behind the weakness of the investigation?

00:16:22.280 I'm not questioning the motivation of the marshal.

00:16:24.980 It just was not given the urgency.

00:16:28.340 You don't know why.

00:16:29.020 Yeah, or the, it just should have been handled much better.

00:16:32.420 It should have been more thorough.

00:16:33.880 Yeah, go ahead.

00:16:34.500 And the thing is, you know,

00:16:35.920 the number one thing I would say about this is

00:16:38.560 the court has a culture of being discreet.

00:16:41.700 It is very important because so much rides on that discretion.

00:16:46.280 A lot of the cases they're dealing with could affect billions of dollars in industry or massive political movements.

00:16:52.720 You have to keep things quiet so people can deliberate in private.

00:16:56.640 And also a decision is not final until it is handed down from the bench.

00:17:01.500 This is why this leak was so awful is that there was, you know, quote unquote, only a five person majority.

00:17:07.900 We know that immediately the justices faced death threats, serious threats on their lives.

00:17:14.400 They all had to be moved or be under a great deal of protection, increase their security posture.

00:17:20.100 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'd been successful, that would have meant that the Dobbs decision would not have been handed down in the way it was.

00:17:37.320 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.

00:18:02.680 And they might have incentive to do so.

00:18:04.160 The left always treated the leaker like a hero.

00:18:07.180 You know, in the moment it happened, they were praising it.

00:18:09.520 You might remember everyone on the left said, this person is a hero.

00:18:12.840 They're getting the court to be, you know, they're burned down the court.

00:18:15.700 And it's wonderful.

00:18:17.380 People on the right were immediately alarmed and immediately alarmed for the safety of the justices.

00:18:22.340 So that might happen.

00:18:23.980 And it's hard for me, and this is Ali Stuckey's opinion here and speculation,

00:18:29.180 it's hard for me to see any other motivation.

00:18:31.920 behind the leak, whoever it was, we don't know, except to do exactly what you said could have

00:18:38.900 happened. If someone had been killed, if someone had been murdered, then there wouldn't have been

00:18:44.520 a majority. I'm not really sure what other motivation you would have, maybe to gin up

00:18:48.920 enough outrage to then pressure the justices to make a different decision and publish a different

00:18:54.640 decision. Maybe it's too far to say that they wanted one of them to be harmed and murdered.

00:18:58.860 But obviously, that was almost a consequence of what happened.

00:19:03.220 Well, I would say the leaker almost certainly wanted that decision not to be handed down.

00:19:07.980 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.

00:19:25.800 And there had been an effort by Justice Breyer, 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.

00:19:38.560 If they could peel him away, that also would have kept Roe from being overturned.

00:19:43.420 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 away.

00:19:55.800 Which is mob rule. And unfortunately, that's a pattern that we see from a lot of people on the

00:20:00.080 left. Again, I'm not even saying the justices on the Supreme Court, but just the media and the

00:20:04.720 activists hoping to use their voice and to use pressure and to use anger. And they say that

00:20:11.380 they're upholding the institutions of democracy and they're the ones that try to bully in order

00:20:16.380 to get their way. This is a major issue facing the court right now. The founders wrote the

00:20:21.540 constitution to have the justices be inured from that political pressure they were they're not

00:20:28.140 elected they have lifetime appointments they are not supposed to be treated the way members of the

00:20:35.780 house of representatives or the president are treated but the left has viewed this as a

00:20:40.440 vulnerability that they can exploit because they're not political they're they think well

00:20:44.860 we could just run political campaigns against these people and cause them to to weaken unfortunately

00:20:51.280 it frequently works. And you've heard maybe about the greenhouse effect on the Supreme Court. This

00:20:57.240 is named for Linda Greenhouse, who was the longtime Supreme Court reporter. She would flatter a

00:21:03.200 Republican appointed justice if they ruled against the conservative position. She would vilify them 1.00

00:21:08.560 if they ruled for the conservative position. And unfortunately, there are people out there who seek

00:21:13.560 to be loved by people at the New York Times. And so they would end up moderating. It is very rare

00:21:20.500 to see a Supreme Court justice become more conservative over his or her time on the court.

00:21:27.920 We certainly went through decades where that was rare.

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00:22:36.680 It seems to only go one direction. I don't think that the left-wing judges or justices rather

00:22:42.380 care about being vilified by the Federalist or by conservatives.

00:22:48.740 They don't seem to moderate their position in order to make us happy.

00:22:52.980 It seems to only be the more conservative justices

00:22:55.760 that care about being liked by the New York Times.

00:22:58.700 Well, and that is one of the things that you've started to see people being screened for

00:23:04.060 when they are considered for a federal judge position or a Supreme Court position.

00:23:08.540 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.

00:23:26.680 You will immediately cave to the whims of the left.

00:23:29.580 And so you're starting to see the Republican Party be a little smarter about how they screen for that in picking federal judges.

00:23:38.540 And Thomas is really seen as someone who's just like, I don't care.

00:23:42.200 I mean, from the time that he had to go through his initial hearing, he had to go through

00:23:46.160 so much media pushback and political witch hunt and everything.

00:23:49.940 But Alito, even if he's less known, he's the same way.

00:23:54.200 He seems completely impervious to what the public thinks about him or what the media

00:23:57.680 writes about him.

00:23:58.680 He does not seek acclaim from people he does not respect.

00:24:01.980 And so that would include the vast majority of the media, perhaps all of the media.

00:24:06.020 He cares deeply about being a judge. And so he is impervious to that political pressure that has been applied to him now for quite a few years on the court. You have to have that if you're going to make it. And for something like Roe, there's one thing about this that I'm a little concerned about for the future.

00:24:23.360 to overturn Roe took not just moral courage, but physical courage. There were immediate and direct

00:24:31.380 threats to the lives of the justices and their families. And it's one thing to have the courage

00:24:38.740 to do what you should do under physical threat to yourself. It's entirely another to put your wife

00:24:45.040 or husband and children through that as well. And I think that going forward, that aspect of the

00:24:52.700 left's campaign to bully the court, unfortunately, will probably have some success because it would

00:24:58.740 be hard for people to be voluntarily taking a relatively low salary compared to what they

00:25:04.180 could get anywhere else just so that their spouse and kids might be killed by people on the left

00:25:09.840 with the full support of many people in the corporate media. Do you think that we can

00:25:14.860 anticipate seeing more leaks? Well, I'm not sure. It really was a rare occurrence and it was a

00:25:21.540 major issue. Abortion motivates the left like few other things do. It really does dominate 0.59

00:25:28.420 the choices they make and how they pursue things. But there are issues of concern with the leak,

00:25:35.840 in part because the leaker was not officially caught, even if people think they may know who

00:25:40.960 he or she was. And so that lack of accountability and punishment for that, you know, the person who

00:25:48.120 did it should be removed from the bar. They should be treated properly by the legal community,

00:25:57.100 which is to say that they violated a great deal of trust. But that trust is built over a long

00:26:02.100 period of time. This violation, I think, is an anomaly. One of the things that does concern me,

00:26:07.820 though, is kind of a new issue, which is betting markets. We have seen this with some aspects of

00:26:14.540 the war against Iran, that people with advanced knowledge of certain things that would happen

00:26:20.320 have been placing bets on those markets and getting huge payouts.

00:26:25.200 Well, again, you think about Supreme Court decisions.

00:26:27.840 They can really affect major issues, major companies, major financial concerns.

00:26:33.800 And I could see that being a problem where the betting markets are in play.

00:26:38.360 That's a huge problem.

00:26:39.320 I mean, gambling is a huge problem in general.

00:26:42.200 It is.

00:26:42.300 We could go on and on about that, but I hadn't really thought about how it could affect things like this.

00:26:47.060 But you see it possibly having repercussions.

00:26:49.900 I do.

00:26:50.180 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.

00:27:07.320 And you're seeing that at even elite law schools, the type of schools that produce the clerks for the court.

00:27:12.900 Yeah. Being an activist is the most important thing, especially when you see these people lauded as heroes like the leaker.

00:27:20.140 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.

00:27:30.240 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.

00:27:42.100 Well, and you look at the history of the court.

00:27:44.060 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.

00:27:57.860 And it wasn't like the court went back and forth between the left and the right.

00:28:02.540 The left just had complete domination.

00:28:04.980 It took the conservative legal movement a lot of time, energy, effort, refinement to

00:28:11.120 finally get a court with a majority of originalist justices and to have a court that has returned

00:28:18.580 to this idea that they are not a legislature.

00:28:21.020 They are not pushing their own political agenda.

00:28:23.220 They're looking at the Constitution and the laws of the land and interpreting that law according to a consistent, coherent philosophy.

00:28:31.400 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.

00:28:40.500 I want to talk about the deliberations a little bit because you have an opinion or thoughts on the Solicitor General of Mississippi who was defending the state of Mississippi at the time.

00:28:50.720 What are your thoughts on how that went down?

00:28:52.200 Well, in the 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.

00:29:17.400 he takes the role and realizes oh i'm going to i'm going to have to deal with what the supreme

00:29:22.560 court has to say about this they kind of expected the supreme court would just say we're not going

00:29:27.120 to consider this we're not going to grant your appeal uh here to the to the supreme court instead

00:29:33.560 after waiting nearly a year they find out oh the court is going to take it so he so stewart has to

00:29:40.140 start preparing to to hear those arguments so i go through the whole story of how he did to prepare

00:29:45.520 those arguments. One of the things I want to point out is that every elite lawyer in D.C.

00:29:49.960 told him, do not ask for Roe v. Wade to be overturned. But Stewart had looked at what

00:29:55.720 every justice had said on related abortion cases. He got the feeling they really wanted someone to

00:30:01.820 ask to overturn Roe v. Wade. And he said, no, we're doing it. We're going hard. Then same

00:30:08.800 group of elite lawyers say, well, if you do ask for that, you have to give them an off-ramp.

00:30:14.160 you have to give them a way to uphold the law without overturning Roe v. Wade, the Chief Justice

00:30:19.420 Roberts option. And he was like, no, I'm not going to do that. I want them to do something tough.

00:30:23.600 And if they're going to do something tough, I have to do something difficult as well. I'm going to

00:30:27.600 ask them to overturn it. So just learning kind of the backstory about how he prepared for that,

00:30:32.480 who all was involved with the effort, and how that went down, I thought was really interesting.

00:30:37.580 Also interesting is that the Supreme Court gets literally like 10,000 requests a year

00:30:44.020 to hear a case, but they only hear fewer than 70. So the vast majority of cases that someone

00:30:50.060 wants to go to the Supreme Court, they don't make it. Well, they waited a year. This case was

00:30:55.840 relisted and rescheduled, which are two different ways you can kind of delay a decision on whether

00:31:01.340 to hear a case or not. They did this in part because Ruth Bader Ginsburg died just before

00:31:07.380 they were about to consider whether to take this. And they just kept discussing it over the course

00:31:13.120 much of the year. And they delayed even announcing that they were going to take the case until the

00:31:18.440 end of the term. And hearing about who was on board with that, Amy Coney Barrett was originally

00:31:24.840 on board with hearing the case, but then she dropped her support for it. All that kind of

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00:32:35.680 did. Go to GoJavity.com slash Allie. That's G-O-G-I-V-I-T-I.com slash Allie for 20% off.

00:32:43.760 GoJavity.com slash Allie. You write about Gorsuch that he was pleading for the dissent opinion to

00:32:54.740 be released after the leak. So as you said, it was originally disseminated among the court in

00:33:01.140 February. It was leaked in May and that caused all the chaos. And then Gorsuch was like, okay,

00:33:06.260 well now the majority opinion is out. We need the dissent to get out too. But that didn't happen,

00:33:11.340 right? Yeah. So I kind of want to explain that part of the process too. Once you decide to hear

00:33:16.120 a case, then you have the different sides provide a briefing, what their arguments are. And you have

00:33:22.840 friends of the court also weigh in. Then you have a day set for oral argument. That's where each

00:33:28.320 side, usually gets a half hour each side. It's a little bit more for the Dobbs decision. And then

00:33:34.260 after that, shortly after that, all of the justices vote on which side they're going to take. And then

00:33:40.960 from that, you assign the opinion. And so the opinion was assigned to Justice Alito in mid

00:33:49.380 December. He gets it done by early February. Now, unbeknownst initially to the other justices,

00:33:56.340 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.

00:34:04.600 So he, early February, sends out the draft.

00:34:08.960 Within, I think it was five minutes, Gorsuch signed on to it.

00:34:12.200 That's when the liberal justices realized, oh, they were working together prior to this.

00:34:17.940 All the other justices sign on within short order.

00:34:20.740 But that meant they had that dissent or they had that opinion in early February.

00:34:26.340 How much time did they need?

00:34:27.560 It's not like this is a question that nobody has considered before,

00:34:30.680 defending Roe v. Wade or overturning it.

00:34:33.280 By May 2nd, when it leaks, they still hadn't sent out their dissent,

00:34:39.140 which they would normally send to all of the justices,

00:34:41.440 so then the majority can respond to what they say in the dissent.

00:34:44.000 So at the next conference, Alito, actually at the next conference,

00:34:49.040 there's a way of grading decisions, which I don't think people really know,

00:34:54.580 which is you are...

00:34:56.560 Conference is literally them just coming together to talk.

00:34:59.400 The judicial, sorry, the conference is just the nine justices themselves, nobody else.

00:35:04.560 Okay, no clerks, no nothing.

00:35:05.760 No clerks, no staff, nothing.

00:35:08.020 And so in that conference...

00:35:10.520 Are they wearing regular clothes during this time?

00:35:13.640 Yes, they do not wear...

00:35:14.940 Okay, they don't wear their robes at all times.

00:35:16.720 Only when they're on the bench.

00:35:17.700 Just trying to get the picture in my head.

00:35:19.440 That would be great.

00:35:20.180 But so during that conference, Roberts announces that the Dobbs decision is rated a C.

00:35:28.500 You can be rated A, B, or C.

00:35:32.100 A is when both the majority opinion and the dissent and whatever concurrences are done.

00:35:37.440 B is when they're almost done.

00:35:40.140 And C is when they're nowhere near done.

00:35:43.680 Dobbs was rated a C.

00:35:45.760 Wow.

00:35:46.700 Meaning they hadn't even, they were delaying the dissemination of this.

00:35:51.980 Do we know why?

00:35:53.020 Just curious.

00:35:53.760 I'll just point that out.

00:35:54.580 It's curious.

00:35:55.300 Curious. 0.99

00:35:55.600 So Alito asks if they can wrap it up because left-wing activists have a motivation to kill them.

00:36:02.160 And that's a concern to the conservative justices.

00:36:06.360 And they wouldn't.

00:36:07.600 They didn't want to.

00:36:09.340 Gorsuch asks, you know, can you get it done by a certain date or give us a date?

00:36:14.160 They wouldn't agree to anything.

00:36:16.140 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.

00:36:31.660 He was a 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.

00:36:44.200 And according to my sources, Kagan goes to his chambers and screams at him not to in

00:36:50.100 any way accommodate this request.

00:36:52.380 As one person put it, the walls were shaking.

00:36:55.240 And sure enough, they...

00:36:57.840 And we don't know why.

00:36:58.740 We don't know what she was screaming exactly.

00:37:01.440 She just did not want any rush of the decision, which had already been...

00:37:05.540 It wasn't a rush, right.

00:37:06.840 It had already been, you know, three months.

00:37:08.840 So they finally get them to agree to get everything together by June 1st, meaning that the justices

00:37:15.700 would only have their lives threatened on a continuous day-to-day basis for one month.

00:37:20.340 And when they finally get their dissent done, they make a gratuitous reference to a different

00:37:26.820 decision that was totally unnecessary.

00:37:29.060 It was a New York State rifle decision.

00:37:32.520 And they knew that case wouldn't be handed down until the very end of the term.

00:37:36.840 so they put that in there just so that they could delay it even further put that in where they put

00:37:42.780 that in their dissent they put that mention of this other decision that they knew would be

00:37:48.600 controversial they knew would be controversial and not no they knew it wouldn't be handed down from

00:37:53.200 the court until later in june okay so they didn't need to mention this other case they do it

00:37:58.800 gratuitously because they know it will further delay that decision being handed down so the

00:38:05.340 final Dobbs decision isn't released until like June 24th. And this is day-to-day attacks on

00:38:12.140 these justices' lives. You have Amy Coney Barrett having to put on a bulletproof vest in front of 0.99

00:38:17.440 her children. You have justices being moved to secure locations or having to greatly increase

00:38:22.100 their security fencing. And it seemed to the justices and their staff that the left-wing

00:38:29.760 justices really didn't care about what they were going through.

00:38:33.640 And why would the official release of the decision, along with the dissent, stop those threats?

00:38:38.780 Because once it's handed down, there's no longer the same incentive.

00:38:42.440 It didn't stop the threats, but it would decrease them.

00:38:45.560 Because it's done.

00:38:46.240 Because it's done.

00:38:46.760 Can't pressure me.

00:38:47.280 And even if you killed Justice Alito on that day, it had already been handed down.

00:38:52.500 So scary.

00:38:53.660 It's horrifying.

00:38:54.620 And also, I just want to point out, what they went through was truly horrible.

00:38:59.360 And the media were kind of blasé about it, as were other people.

00:39:03.140 Right.

00:39:03.300 Congress should have stepped in. You had Merrick Garland, the attorney general, not really caring

00:39:08.680 at all. There are federal laws in place that you are not to protest a federal judge or Supreme

00:39:14.880 Court justice to affect the outcome of a decision. He had plenty of resources. And instead, I mean,

00:39:21.640 you might remember the Biden administration came out and said, well, we think these protests are

00:39:25.640 mostly peaceful. And so keep it going. Yeah. I mean, it was just the lack of concern. And these

00:39:31.800 The other thing about this is the justices don't have PR firms.

00:39:35.440 They don't have even a communication staffer to kind of help craft messages or get things out.

00:39:41.500 They're not high-powered celebrities.

00:39:42.880 They were completely alone, and nobody really came to their defense.

00:39:46.140 Yeah, and their families don't always have 24-7 security surrounding them.

00:39:51.260 They're just regular people.

00:39:52.520 Well, and they were going after children, both adult and minor children.

00:39:56.140 It was a really bad thing.

00:39:58.420 Also, I don't know if people remember, they were attacking...

00:40:01.800 pro-life clinics and firebombing them and being proud about it. There were 1.00

00:40:05.940 hundreds of attacks on Christian churches. It was a really dark time.

00:40:11.160 And they used, the Biden administration used the FACE Act to go after actual peaceful pro-life

00:40:18.120 protesters and praying and things like that, but didn't use the FACE Act to go after the people

00:40:23.300 that were violating these pregnancy centers, which is why I'm thankful that now the administration

00:40:28.260 is doing the opposite of that.

00:40:30.600 They're going after those who are firebombing.

00:40:32.580 But it just, I mean, it goes to show

00:40:34.560 that at least some on the left

00:40:35.800 and the activist class and the political class,

00:40:37.860 it's almost like this belief that,

00:40:39.780 well, that's kind of what you get.

00:40:41.940 That's kind of what you get. 0.99

00:40:42.800 If you're gonna take away our right to kill babies, 0.97

00:40:45.460 sorry, that's what you get.

00:40:47.180 There definitely was this ends justify the means.

00:40:49.600 Even if you heard what some of the protesters

00:40:52.280 outside Justice Kavanaugh's home were saying, 0.97

00:40:54.420 they said, well, if he takes away my right to kill a baby,

00:40:56.580 he doesn't get the right to sleep at night. To live. Right. Yeah. Wearing their handmaid's 0.65

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00:42:32.880 We talked about kind of the method of Alito and how he lays out his argument. But when it comes

00:42:40.240 to this specific decision, what was the thrust, the core of his argument?

00:42:44.260 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.

00:42:56.320 And his main point was that the Constitution does not anywhere say that you have the right to abort a child.

00:43:06.080 And the Constitution also says to allow the people the right to set their own laws.

00:43:14.380 A lot of people, I think, through media hysteria or other hysteria, thought that the Dobbs decision overturned abortion laws, meaning that it said that abortion is no longer legal.

00:43:27.040 It actually didn't.

00:43:27.700 It was a very moderate, modest decision.

00:43:30.140 Many pro-lifers might have wished it had said something like that.

00:43:32.780 Yeah. Instead, it said the people have the right to set their own abortion laws because it's not mentioned in the Constitution.

00:43:40.460 They can do that at the ballot box. They can do that through their state or federal legislature. 0.96

00:43:45.660 But they they have that right. And that is the main takeaway.

00:43:49.500 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.

00:43:57.900 the court is there to be to hold to the constitution which is unchanging and to protect the right of

00:44:05.100 the people to govern themselves which does not mean that it must be a state's issue he's just

00:44:11.300 saying that it has to be a people issue so if people said okay we actually do want a federal

00:44:16.640 ban on abortion and through congress we were able to pass a constitutional amendment or congress was

00:44:22.320 able to do that or pass a law bid on abortion we could do that so his wasn't well it's just

00:44:26.580 states' rights. It wasn't really anything about what the federal government could do. It was just

00:44:31.020 it's not the court's place to ban it or to decide, right?

00:44:35.140 And that is one of the misconceptions people have about the Dobbs decision. They think it was

00:44:38.600 returned solely to the states. No, it was returned to the people. The people can work on this at the

00:44:44.420 local level, at the state level, or at the federal level. But it's the people who get to set the law.

00:44:50.260 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.

00:45:02.560 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.

00:45:19.660 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, you know, at law schools.

00:45:31.600 Those kinds of discussions where people just opened up and showed how much they love this man.

00:45:37.580 I loved being able to tell some of those stories.

00:45:40.620 He's incredibly reserved.

00:45:43.040 unlike one of the things Scalia had said when he came onto the court when Alito came onto the court

00:45:48.480 was how remarkable a shy Supreme Court justice he's not like all the others they're so there's

00:45:55.560 they're sometimes very focused on celebrity so you look at a Sonia Sotomayor or Ketanji Brown

00:46:01.240 Jackson they're on Sesame Street they're on different TV shows they're performing in Broadway

00:46:05.640 plays they have you know Ruth Bader Ginsburg had children's books written about her she would lift

00:46:10.680 some whites and it was like a major story in publications alito is very devoted to his wife

00:46:16.820 their children his grandchildren he does not seek a claim like you'll go to a you'll go to a party

00:46:22.780 with high profile people he's not trying to be the center of attention he's listening to what

00:46:27.380 other people have to say but i'd love being able to tell some of those stories about his

00:46:31.420 very dry sense of humor can you tell one of them i mean this is kind of a silly one but

00:46:37.220 he took his clerks to the shakespeare library um which was having an exhibit on the magna

00:46:43.620 carta magna carta yeah and there had been a rap album named the magna carta so the docent is

00:46:50.560 telling them about the rap album and he he replied what's a rapper and let it just lie 0.85

00:46:57.380 for a minute she didn't know if he was serious or not he was clearly joking i mean just silly

00:47:01.900 things like this but he but but also touching things you know one of the clerks her daughter

00:47:06.720 had made a little bracelet for him that said SAA, his initials, with wire and little beads.

00:47:14.160 And so she had dutifully given the daughter's gift to Justice Alito.

00:47:17.660 Well, the daughter came in, little girl, to the chambers a few months later, and he slips

00:47:23.460 back into his office, puts on the bracelet, and comes out.

00:47:26.100 Doesn't say anything, but just let her have the joy of seeing that he had taken it.

00:47:31.420 That's really sweet.

00:47:32.040 Just nice to have some of those stories being able to be told.

00:47:37.340 You've talked about him being kind of like the secret sauce

00:47:40.040 on the conservative side of things for the court.

00:47:43.580 How is that true?

00:47:44.980 How does he hold things together?

00:47:46.360 Okay, so it kind of goes back to that aircraft carrier Green Beret analogy.

00:47:50.560 He cares deeply about religious liberty.

00:47:53.120 And he was a federal judge for 15 years before he went on the Supreme Court.

00:47:56.560 He also cared deeply about religious liberty earlier.

00:47:59.320 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.

00:48:09.200 Issues like Employment Division v. Smith, which was actually a rare bad opinion from Justice Scalia, which did not protect the religious rights of Native Americans.

00:48:21.260 And he's kind of had this goal of getting the court to fix that situation.

00:48:27.020 Now, there are other justices who share his view on this.

00:48:30.800 They think, well, when that case comes up, when a case comes up, we should just overturn it.

00:48:35.020 But he knows that he won't have a majority if he goes too far.

00:48:40.140 So he slowly moves things in the proper direction. 0.91

00:48:43.860 There's something called the Lemon Test, which had been a way to violate religious believers' rights. 0.92

00:48:50.920 Case over case over case. 1.00

00:48:52.620 He kind of gets them moving in the right direction.

00:48:54.640 And ultimately, Gorsuch was able to take all of the work he'd done to finally overturn the lemon test.

00:49:01.200 This takes work.

00:49:02.620 It takes strategy.

00:49:04.560 Some people just want to be right, and they don't care if they have a majority.

00:49:07.720 They don't care if it actually gets to the proper result.

00:49:11.740 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.

00:49:21.280 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.

00:49:31.020 You just do the, you know, that's the only thing that we should care about.

00:49:33.800 You also have people in the conservative movement and sometimes the conservative legal movement who say, we just have to win.

00:49:39.500 We just have to achieve what we need to achieve and who cares how we get there.

00:49:43.180 For the conservative movement and the conservative legal movement to be healthy going forward, they need to balance both principle and pragmatism.

00:49:53.800 The whole point of having principles is to help people.

00:49:58.540 And if you're not thinking about how to pragmatically help people with those principles, it's just sound and fury.

00:50:04.960 And he is the model there.

00:50:07.140 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 acclaim, but delivering win after win after win over his time on the court.

00:50:31.300 He's done a ton for religious liberty, especially in the past few years.

00:50:34.800 A lot of these wins that I think some people think, wow, suddenly we just have this like

00:50:39.360 wave of success.

00:50:40.660 Of course, there's very brilliant lawyers who have brought these cases, argued these

00:50:43.800 cases.

00:50:44.200 But it sounds like you're saying a lot of these wins are actually due to decades of

00:50:48.380 work of Alito and, of course, Thomas and other justices as well.

00:50:52.140 But Alito is the one who has kind of laid the groundwork for those wins.

00:50:55.800 Exactly.

00:50:56.280 And religious liberty is a big concern for a lot of Americans.

00:50:59.680 And if they care about that, they need to know how much work goes into preserving that.

00:51:04.820 How long has he been on the court?

00:51:06.460 He was he's been there since 2006.

00:51:09.660 OK, 2006.

00:51:10.720 And I saw some tweet the other day.

00:51:12.260 I don't even know the source of it.

00:51:13.500 So maybe not reliable saying that it's possible that he could retire sometime in the next few years.

00:51:19.260 Do you think that's a possibility?

00:51:20.460 Oh, I mean, certainly any of the justices can retire at any point for any reason.

00:51:25.080 There's been a lot of pressure to get Thomas or Alito to retire.

00:51:29.680 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.

00:51:42.840 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.

00:51:53.640 And in fact, Chief Justice Roberts has been there longer than Alito, albeit only by a few months.

00:52:00.320 And has also had a much less stellar record of success on the court in terms of what conservatives had hoped to achieve.

00:52:06.760 So I do not think it's good to pressure justices to retire.

00:52:11.060 That's a decision I think that they should make.

00:52:13.400 But if you were to pressure, maybe pressure, you know, why Thomas has already pretty much indicated he would like to go out feet first.

00:52:21.280 And that is because of what the left put him through, and he just does not want to give them a victory.

00:52:27.420 Although, I guess you could say it would be a victory if a Democrat is elected and gets to replace him.

00:52:33.600 And how old are they? Do you know off the top of your head?

00:52:36.200 I think Thomas is maybe 77. Alito turned 76 this month.

00:52:43.600 And Roberts is probably 72.

00:52:44.540 That's young compared to our presidential standards these days. Not too bad.

00:52:48.160 And it's even young for a lot of Supreme Court justices who have, you know, served into their 90s. 1.00

00:52:53.800 But Ruth Bader Ginsburg wanted to retire under a president, Hillary Clinton. 0.51

00:53:00.380 So she didn't retire under Obama when a lot of people encouraged her to. 0.98

00:53:05.040 And Hillary Clinton never became president. 0.97

00:53:07.580 Right. 0.98

00:53:07.940 And so she ends up dying.

00:53:09.280 And of all indignities for her, Donald Trump ends up appointing her the person to fill her seat.

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00:54:27.220 I think Alito is a young, seemingly young person with a lot of energy. And I would just caution

00:54:34.900 people who are trying to pressure that Alito and Thomas are undoubtedly the best justices

00:54:42.000 on the court right now and losing them would be a huge loss because the three Trump appointees

00:54:47.780 they're still somewhat gaining their foothold and one hopes that they will increase the amount

00:54:55.800 of courage they have with time and the amount of boldness they have with time but they have

00:54:59.640 not demonstrated it quite as much as you might have hoped yet yeah and that's a little bit

00:55:04.820 of my concern. Obviously, Trump would do a better job of appointing a replacement for Alito or

00:55:09.860 Thomas than a Democrat would. And so we'd be happy about that. But his three appointees so far are

00:55:15.540 not Alito and Thomas. I'm not saying they're all bad, but they're less reliable. We can't say 100%

00:55:21.240 every time. I would have never guessed that Gorsuch would have gone the way that he did on

00:55:24.680 the Bostock case. And that was horrible. And that's been really, really hard for conservatives

00:55:28.920 fighting against that and fighting for Title IX. So I'm a little nervous about who would replace

00:55:34.660 them even under a Trump presidency. So. Now I do, I totally agree. And the Bostock decision,

00:55:40.000 I think is completely indefensible. And Justice Alito, as I tell the story in there, has spoken

00:55:45.340 at length about how much he disagrees with his friend, Neil Gorsuch, on that decision and why.

00:55:50.820 But it is also true, and this is something I think conservatives should keep in mind,

00:55:54.880 this is undoubtedly the best court we've had in history. It may not be doing as much or as quickly,

00:56:01.860 doing it as quickly as people would like. But the caliber of the vast majority of the justices

00:56:08.140 is just so far above what we've seen in our country's history. Their intelligence,

00:56:14.380 their writing ability, their academic credentials. They are not the politicians that we saw in the

00:56:20.560 past on the court. And so people should keep that in mind too, even with the disappointment that

00:56:24.940 people understandably feel about some of their decision. I like it when they get a little sassy

00:56:30.100 sometimes and their own intellectual speak. Like I think that Thomas sometimes when he's talking

00:56:35.240 about, say, Jackson, Justice Jackson, and the things that she that she says, maybe sassy isn't

00:56:42.580 the right word, but he will directly go after like, you know, in layman speak, this is the most 0.95

00:56:47.600 ridiculous thing that I've ever heard. Or that is such a misunderstanding of the law that she's 0.72

00:56:51.740 citing. I kind of appreciate when they spar back and forth in that way. Yeah, I love when they

00:56:57.020 discuss with each other. It's also true that while Kagan, Justice Kagan, is respected by her

00:57:02.800 colleagues and is recognized as an intellect, I wouldn't say the same is true of her two left-wing

00:57:10.660 colleagues. Sotomayor and Jackson. Sotomayor, I remember, there was something recently where

00:57:17.280 she totally did not understand the science of either reproduction or gender or something like 0.98

00:57:22.760 that. She made a really stupid comment, which you expect even when you disagree with someone. Okay, 1.00

00:57:27.100 but they're probably smarter than me. But when you read something like that, you're like, I'm not

00:57:31.440 sure. I don't know. I will say someone at the court, highly placed, said that Justice Jackson

00:57:38.060 makes Justice Sotomayor look like a philosopher king. And I wouldn't say that Justice Sotomayor

00:57:44.180 had the best reputation prior to that, even among the left. You might remember when she was nominated,

00:57:48.960 Many prominent scholars on the left said she really is not going to she's not going to convince anybody.

00:57:54.460 She's not going to persuade. You need a higher caliber justice.

00:57:58.280 And then Justice Jackson, 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.

00:58:09.300 I mean, you saw even say what you want about Justices Kavanaugh and Justice Amy Coney Barrett.

00:58:15.240 They're very polite and civil people.

00:58:17.300 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 and there's no mention of the law in this dissent.

00:58:30.320 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.

00:58:41.200 So it's probably not good for the left if they want to have influence on the court to have people like those two justices.

00:58:50.960 What do you think is going to happen with the birthright citizenship case?

00:58:53.520 I actually got to attend oral argument for that.

00:58:56.360 And normally oral arguments are half hour each side.

00:58:59.440 This was more like an hour each side.

00:59:01.400 And the reason why is because the court has literally never considered this issue before.

00:59:05.980 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.

00:59:22.180 And 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 U.S., people who oppose that idea that those people are citizens, they have really strong arguments.

00:59:40.480 And I would not be shocked if they found significant persuasion or persuasiveness.

00:59:49.680 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.

01:00:03.300 It's based in policy.

01:00:04.300 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.

01:00:24.420 Like we have literally like a million people who were born here, but but live in China who could run for president. Right. I mean, that's that is kind of crazy when you think about it. Yeah. One of the leaders of a Mexican cartel is officially an American citizen.

01:00:39.140 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.

01:01:02.500 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.

01:01:12.520 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. 0.70

01:01:28.440 They pay a ton of money to the surrogacy companies and to that woman here.

01:01:32.520 The woman gives birth, ships the child after a few months back to China.

01:01:37.820 And then, you know, they come back here.

01:01:39.440 They train at our universities, fully indoctrinated by the Chinese Communist Party, and then wield all this power.

01:01:45.180 And that would get rid of that.

01:01:46.840 So it's not to me.

01:01:48.100 This has nothing to do with what the court is going to decide, probably.

01:01:51.200 But just to me, it's not only a citizenship issue.

01:01:54.060 It's a moral issue.

01:01:54.840 and it's a child protection issue 0.84

01:01:56.440 because these kids are being used as pawns

01:01:59.220 for political power for our foreign adversaries.

01:02:02.040 And it's wild to me that our law allows that.

01:02:05.100 Well, the major case against this idea

01:02:07.900 of birthright citizenship is an originalist case.

01:02:10.680 And five of the justices are originalists.

01:02:13.340 They know that when the 14th Amendment was passed,

01:02:15.340 it was precisely to protect children born of slaves

01:02:19.740 and slaves and the enslaved people

01:02:21.780 to say that these people are full citizens

01:02:23.860 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.

01:02:45.900 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.

01:02:58.620 So to some extent, that kind of view might be persuasive, even with the Chief Justice Roberts. 0.69

01:03:03.400 Not like I'm holding my breath for that.

01:03:06.160 But yeah.

01:03:07.280 How likely do you think it is that the Democrats would and could pack the Supreme Court?

01:03:12.700 Oh, I think they've been very clear that the moment that they get that power, they they're very keen to do that. They really view the Supreme Court as their institution. They loved what happened under the war in the Warren court in the Berger 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.

01:03:42.700 instead of rule of law. So what do you do? You pack the court. And even when there was the

01:03:47.940 presidential election in 2024 and starting to hear it even before that, you had a lot of

01:03:54.960 prominent Democrats just to openly call for it. So I do think, particularly given the more

01:04:00.520 radicalized nature of the Democrat Party, that will become a major issue going forward.

01:04:05.820 And for those who don't know, packing the court would be adding a number of seats,

01:04:09.500 however many seats and then throwing the activist left-wing judges on there and then it becomes

01:04:14.720 much harder for when you know republicans take office to replace those it's just harder because

01:04:22.100 you got you suddenly have a liberal majority and you've got more people that you would have to

01:04:26.820 battle against yeah and the constitution does not stipulate the number of justices on the court

01:04:31.160 interestingly enough but it has been set for a really long time you know since the

01:04:35.440 you know, early 19th century that it's been at nine. And you had FDR threatened to pack the court

01:04:41.800 and he wasn't able to achieve that, although he did end up appointing all nine. He served for so 0.76

01:04:46.860 long that he ended up appointing all nine justices. But he wanted to do that because he was frustrated

01:04:51.900 that the court was ruling unconstitutional his various New Deal plans. And so packing the court

01:04:58.940 isn't about changing the number of justices on the court. It's about doing it for political gain.

01:05:03.800 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 is a horribly awful threat to make.

01:05:19.120 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.

01:05:34.260 What do you hope that someone who finishes this book, like one thing that they walk away with that would make you just smile?

01:05:41.700 Well, I think there are lessons here.

01:05:43.140 Obviously, if you're interested in the Supreme Court, there's a lot of inside stuff about what goes on there.

01:05:48.480 And I've always loved learning about the court that way.

01:05:51.640 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, that that is also important.

01:06:02.840 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.

01:06:11.440 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, all different kinds of things.

01:06:39.900 Yeah, that's so good. Thank you so much. This is fascinating. People are going to learn so much,

01:06:44.300 but there's a ton of juicy stuff in your book that we did not get to talk to. So if people

01:06:48.700 want more stories, more accounts, even more about the leak, they need to buy your book and it's

01:06:52.840 available wherever books are sold, right? Exactly right. Okay, perfect. Thank you so much, Molly.

01:06:56.860 Thank you, Alibeth.

01:07:09.900 You

Relatable with Allie Beth Stuckey - April 24, 2026

Ep 1337 ｜ Journalist Reveals Justice’s Embarrassing Tantrum— & other Untold SCOTUS Stories ｜ Mollie Hemingway

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