00:03:09.180Well, Clarence Thomas is wonderful and deserves all of the praise that he gets from people
00:03:14.240You 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.
00:03:32.020And he and Alito are very close on the court.
00:03:38.960They tend to be on the same side of decisions.
00:03:41.380But 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.
00:03:52.160Alito and his chambers are more like the Green Berets.
00:03:54.920They get in there and they do the work to ready for greater impact.
00:04:00.680And so Alito is more about the day-to-day.
00:04:03.820He's more about the practical questions.
00:04:06.680Like Justice Thomas, he knows where he wants to land, and he just says it, and he stays there.
00:04:11.980Whereas Alito thinks, well, if that's where we want to be, how are we going to get there?
00:04:15.860What kind of cases can we agree to hear that would move the court in the direction that we should be?
00:04:22.080So they work in a very complementary fashion.
00:04:24.940Tell me how that played out in the Dobbs decision, the decision that overturned Roe v. Wade.
00:04:29.260Well, 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.
00:04:51.980It'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.
00:05:11.020Because 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.
00:05:35.680So 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.
00:05:45.940Well, 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.
00:06:04.160Instead, 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.
00:06:18.580You 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.
00:06:36.460It 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.
00:06:55.060You 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.
00:07:04.900And at that point, you had almost everybody had been nominated by a Republican.
00:07:09.620They were all supposed to be pretty good.
00:07:11.880I think maybe the only Democrat was Byron White and he had – or was Rehnquist and he had voted against Roe v. Wade.
00:07:24.240a group of three justices try to preserve Roe by saying, well, maybe the original people got it
00:07:30.120wrong. It's not a right to privacy that's hidden in the 14th Amendment. It comes from this liberty
00:07:34.560concern in the 14th Amendment. And so they redraft Roe, and then they tell everybody,
00:07:39.840you can't fight us on this. You just have to accept it. Well, the American public said,
00:07:44.620who makes you king of this? The whole point is we want to be able to fight about this. We do want
00:07:50.540to be able to advocate for the abortion laws that we think are good. So after 50 years and all the
00:07:57.780pressure that had been put against the court, it was really important that the decision be done
00:08:02.640well. Now, it was a kind of complicated process how Dobbs even came to the court and how it came
00:08:07.300to be heard. But when it was finally heard, you had five justices who said, it's time to overturn
00:08:13.500Roe. It was always a mess. It's still a mess. Now, in the court, the chief justice gets to assign
00:08:20.400the opinion to whomever he wants to assign it to. But he doesn't get that to do that if he's not in
00:08:26.880the majority. And Chief Justice Roberts was not in the majority. So then it goes to the next senior
00:08:31.920justice, and that is Clarence Thomas. Clarence Thomas already had a big decision for the term.
00:08:39.100In the majority. When you say the majority, you're talking about not right versus left. You're
00:08:42.920talking about in the majority opinion. Yes. So Justice Roberts was not. So they heard the case
00:08:48.440And 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.
00:12:28.360And 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.
00:12:45.460So that's why he was really the perfect person to write the majority opinion, right?
00:12:49.400And 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.
00:13:09.840Well, 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.
00:13:20.440Like 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.
00:13:32.980And is that why one of them presumably allowed it to leak?
00:13:36.920So 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.
00:13:58.320Although I will say that nobody I spoke with in any way thought it was one of the justices.
00:14:05.080And most people, you know, if they were speculating about it, would say a particular clerk or maybe a member of the staff.
00:14:12.320Right. Do you think that there has been a thorough enough investigation?
00:14:16.000Oh, not at all. There was never a thorough investigation.
00:14:19.320I don't know any other instance, you probably do, of a Supreme Court decision being leaked to the public.
00:14:25.000So I don't even know how that works to suss that out.
00:14:27.680Now, 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.
00:14:54.340The 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.
00:16:35.920the number one thing I would say about this is
00:16:38.560the court has a culture of being discreet.
00:16:41.700It is very important because so much rides on that discretion.
00:16:46.280A lot of the cases they're dealing with could affect billions of dollars in industry or massive political movements.
00:16:52.720You have to keep things quiet so people can deliberate in private.
00:16:56.640And also a decision is not final until it is handed down from the bench.
00:17:01.500This is why this leak was so awful is that there was, you know, quote unquote, only a five person majority.
00:17:07.900We know that immediately the justices faced death threats, serious threats on their lives.
00:17:14.400They all had to be moved or be under a great deal of protection, increase their security posture.
00:17:20.100Because 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.
00:17:37.320There 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.
00:18:02.680And they might have incentive to do so.
00:18:04.160The left always treated the leaker like a hero.
00:18:07.180You know, in the moment it happened, they were praising it.
00:18:09.520You might remember everyone on the left said, this person is a hero.
00:18:12.840They're getting the court to be, you know, they're burned down the court.
00:18:23.980And it's hard for me, and this is Ali Stuckey's opinion here and speculation,
00:18:29.180it's hard for me to see any other motivation.
00:18:31.920behind the leak, whoever it was, we don't know, except to do exactly what you said could have
00:18:38.900happened. If someone had been killed, if someone had been murdered, then there wouldn't have been
00:18:44.520a majority. I'm not really sure what other motivation you would have, maybe to gin up
00:18:48.920enough outrage to then pressure the justices to make a different decision and publish a different
00:18:54.640decision. Maybe it's too far to say that they wanted one of them to be harmed and murdered.
00:18:58.860But obviously, that was almost a consequence of what happened.
00:19:03.220Well, I would say the leaker almost certainly wanted that decision not to be handed down.
00:19:07.980Whether 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.
00:19:25.800And 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.
00:19:38.560If they could peel him away, that also would have kept Roe from being overturned.
00:19:43.420You 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.
00:19:55.800Which is mob rule. And unfortunately, that's a pattern that we see from a lot of people on the
00:20:00.080left. Again, I'm not even saying the justices on the Supreme Court, but just the media and the
00:20:04.720activists hoping to use their voice and to use pressure and to use anger. And they say that
00:20:11.380they're upholding the institutions of democracy and they're the ones that try to bully in order
00:20:16.380to get their way. This is a major issue facing the court right now. The founders wrote the
00:20:21.540constitution to have the justices be inured from that political pressure they were they're not
00:20:28.140elected they have lifetime appointments they are not supposed to be treated the way members of the
00:20:35.780house of representatives or the president are treated but the left has viewed this as a
00:20:40.440vulnerability that they can exploit because they're not political they're they think well
00:20:44.860we could just run political campaigns against these people and cause them to to weaken unfortunately
00:20:51.280it frequently works. And you've heard maybe about the greenhouse effect on the Supreme Court. This
00:20:57.240is named for Linda Greenhouse, who was the longtime Supreme Court reporter. She would flatter a
00:21:03.200Republican appointed justice if they ruled against the conservative position. She would vilify them1.00
00:21:08.560if they ruled for the conservative position. And unfortunately, there are people out there who seek
00:21:13.560to be loved by people at the New York Times. And so they would end up moderating. It is very rare
00:21:20.500to see a Supreme Court justice become more conservative over his or her time on the court.
00:21:27.920We certainly went through decades where that was rare.
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00:22:36.680It seems to only go one direction. I don't think that the left-wing judges or justices rather
00:22:42.380care about being vilified by the Federalist or by conservatives.
00:22:48.740They don't seem to moderate their position in order to make us happy.
00:22:52.980It seems to only be the more conservative justices
00:22:55.760that care about being liked by the New York Times.
00:22:58.700Well, and that is one of the things that you've started to see people being screened for
00:23:04.060when they are considered for a federal judge position or a Supreme Court position.
00:23:08.540It 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.
00:23:26.680You will immediately cave to the whims of the left.
00:23:29.580And so you're starting to see the Republican Party be a little smarter about how they screen for that in picking federal judges.
00:23:38.540And Thomas is really seen as someone who's just like, I don't care.
00:23:42.200I mean, from the time that he had to go through his initial hearing, he had to go through
00:23:46.160so much media pushback and political witch hunt and everything.
00:23:49.940But Alito, even if he's less known, he's the same way.
00:23:54.200He seems completely impervious to what the public thinks about him or what the media
00:23:58.680He does not seek acclaim from people he does not respect.
00:24:01.980And so that would include the vast majority of the media, perhaps all of the media.
00:24:06.020He 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.
00:24:23.360to overturn Roe took not just moral courage, but physical courage. There were immediate and direct
00:24:31.380threats to the lives of the justices and their families. And it's one thing to have the courage
00:24:38.740to do what you should do under physical threat to yourself. It's entirely another to put your wife
00:24:45.040or husband and children through that as well. And I think that going forward, that aspect of the
00:24:52.700left's campaign to bully the court, unfortunately, will probably have some success because it would
00:24:58.740be hard for people to be voluntarily taking a relatively low salary compared to what they
00:25:04.180could get anywhere else just so that their spouse and kids might be killed by people on the left
00:25:09.840with the full support of many people in the corporate media. Do you think that we can
00:25:14.860anticipate seeing more leaks? Well, I'm not sure. It really was a rare occurrence and it was a
00:25:21.540major issue. Abortion motivates the left like few other things do. It really does dominate0.59
00:25:28.420the choices they make and how they pursue things. But there are issues of concern with the leak,
00:25:35.840in part because the leaker was not officially caught, even if people think they may know who
00:25:40.960he or she was. And so that lack of accountability and punishment for that, you know, the person who
00:25:48.120did it should be removed from the bar. They should be treated properly by the legal community,
00:25:57.100which is to say that they violated a great deal of trust. But that trust is built over a long
00:26:02.100period of time. This violation, I think, is an anomaly. One of the things that does concern me,
00:26:07.820though, is kind of a new issue, which is betting markets. We have seen this with some aspects of
00:26:14.540the war against Iran, that people with advanced knowledge of certain things that would happen
00:26:20.320have been placing bets on those markets and getting huge payouts.
00:26:25.200Well, again, you think about Supreme Court decisions.
00:26:27.840They can really affect major issues, major companies, major financial concerns.
00:26:33.800And I could see that being a problem where the betting markets are in play.
00:26:50.180And 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.
00:27:07.320And you're seeing that at even elite law schools, the type of schools that produce the clerks for the court.
00:27:12.900Yeah. Being an activist is the most important thing, especially when you see these people lauded as heroes like the leaker.
00:27:20.140And 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.
00:27:30.240But 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.
00:27:42.100Well, and you look at the history of the court.
00:27:44.060We 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.
00:27:57.860And it wasn't like the court went back and forth between the left and the right.
00:28:02.540The left just had complete domination.
00:28:04.980It took the conservative legal movement a lot of time, energy, effort, refinement to
00:28:11.120finally get a court with a majority of originalist justices and to have a court that has returned
00:28:18.580to this idea that they are not a legislature.
00:28:21.020They are not pushing their own political agenda.
00:28:23.220They're looking at the Constitution and the laws of the land and interpreting that law according to a consistent, coherent philosophy.
00:28:31.400I 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.
00:28:40.500I 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.
00:28:50.720What are your thoughts on how that went down?
00:28:52.200Well, 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.
00:29:17.400he takes the role and realizes oh i'm going to i'm going to have to deal with what the supreme
00:29:22.560court has to say about this they kind of expected the supreme court would just say we're not going
00:29:27.120to consider this we're not going to grant your appeal uh here to the to the supreme court instead
00:29:33.560after waiting nearly a year they find out oh the court is going to take it so he so stewart has to
00:29:40.140start preparing to to hear those arguments so i go through the whole story of how he did to prepare
00:29:45.520those arguments. One of the things I want to point out is that every elite lawyer in D.C.
00:29:49.960told him, do not ask for Roe v. Wade to be overturned. But Stewart had looked at what
00:29:55.720every justice had said on related abortion cases. He got the feeling they really wanted someone to
00:30:01.820ask to overturn Roe v. Wade. And he said, no, we're doing it. We're going hard. Then same
00:30:08.800group of elite lawyers say, well, if you do ask for that, you have to give them an off-ramp.
00:30:14.160you have to give them a way to uphold the law without overturning Roe v. Wade, the Chief Justice
00:30:19.420Roberts option. And he was like, no, I'm not going to do that. I want them to do something tough.
00:30:23.600And if they're going to do something tough, I have to do something difficult as well. I'm going to
00:30:27.600ask them to overturn it. So just learning kind of the backstory about how he prepared for that,
00:30:32.480who all was involved with the effort, and how that went down, I thought was really interesting.
00:30:37.580Also interesting is that the Supreme Court gets literally like 10,000 requests a year
00:30:44.020to hear a case, but they only hear fewer than 70. So the vast majority of cases that someone
00:30:50.060wants to go to the Supreme Court, they don't make it. Well, they waited a year. This case was
00:30:55.840relisted and rescheduled, which are two different ways you can kind of delay a decision on whether
00:31:01.340to hear a case or not. They did this in part because Ruth Bader Ginsburg died just before
00:31:07.380they were about to consider whether to take this. And they just kept discussing it over the course
00:31:13.120much of the year. And they delayed even announcing that they were going to take the case until the
00:31:18.440end of the term. And hearing about who was on board with that, Amy Coney Barrett was originally
00:31:24.840on board with hearing the case, but then she dropped her support for it. All that kind of
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00:32:43.760GoJavity.com slash Allie. You write about Gorsuch that he was pleading for the dissent opinion to
00:32:54.740be released after the leak. So as you said, it was originally disseminated among the court in
00:33:01.140February. It was leaked in May and that caused all the chaos. And then Gorsuch was like, okay,
00:33:06.260well now the majority opinion is out. We need the dissent to get out too. But that didn't happen,
00:33:11.340right? Yeah. So I kind of want to explain that part of the process too. Once you decide to hear
00:33:16.120a case, then you have the different sides provide a briefing, what their arguments are. And you have
00:33:22.840friends of the court also weigh in. Then you have a day set for oral argument. That's where each
00:33:28.320side, usually gets a half hour each side. It's a little bit more for the Dobbs decision. And then
00:33:34.260after that, shortly after that, all of the justices vote on which side they're going to take. And then
00:33:40.960from that, you assign the opinion. And so the opinion was assigned to Justice Alito in mid
00:33:49.380December. He gets it done by early February. Now, unbeknownst initially to the other justices,
00:33:56.340He 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.
00:34:04.600So he, early February, sends out the draft.
00:34:08.960Within, I think it was five minutes, Gorsuch signed on to it.
00:34:12.200That's when the liberal justices realized, oh, they were working together prior to this.
00:34:17.940All the other justices sign on within short order.
00:34:20.740But that meant they had that dissent or they had that opinion in early February.
00:36:16.140After 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.
00:36:31.660He 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.
00:36:44.200And according to my sources, Kagan goes to his chambers and screams at him not to in
00:42:32.880We talked about kind of the method of Alito and how he lays out his argument. But when it comes
00:42:40.240to this specific decision, what was the thrust, the core of his argument?
00:42:44.260So 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.
00:42:56.320And his main point was that the Constitution does not anywhere say that you have the right to abort a child.
00:43:06.080And the Constitution also says to allow the people the right to set their own laws.
00:43:14.380A 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.
00:43:27.700It was a very moderate, modest decision.
00:43:30.140Many pro-lifers might have wished it had said something like that.
00:43:32.780Yeah. Instead, it said the people have the right to set their own abortion laws because it's not mentioned in the Constitution.
00:43:40.460They can do that at the ballot box. They can do that through their state or federal legislature.0.96
00:43:45.660But they they have that right. And that is the main takeaway.
00:43:49.500And 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.
00:43:57.900the court is there to be to hold to the constitution which is unchanging and to protect the right of
00:44:05.100the people to govern themselves which does not mean that it must be a state's issue he's just
00:44:11.300saying that it has to be a people issue so if people said okay we actually do want a federal
00:44:16.640ban on abortion and through congress we were able to pass a constitutional amendment or congress was
00:44:22.320able to do that or pass a law bid on abortion we could do that so his wasn't well it's just
00:44:26.580states' rights. It wasn't really anything about what the federal government could do. It was just
00:44:31.020it's not the court's place to ban it or to decide, right?
00:44:35.140And that is one of the misconceptions people have about the Dobbs decision. They think it was
00:44:38.600returned solely to the states. No, it was returned to the people. The people can work on this at the
00:44:44.420local level, at the state level, or at the federal level. But it's the people who get to set the law.
00:44:50.260Can 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.
00:45:02.560So 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.
00:45:19.660But 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.
00:45:31.600Those kinds of discussions where people just opened up and showed how much they love this man.
00:45:37.580I loved being able to tell some of those stories.
00:47:46.360Okay, so it kind of goes back to that aircraft carrier Green Beret analogy.
00:47:50.560He cares deeply about religious liberty.
00:47:53.120And he was a federal judge for 15 years before he went on the Supreme Court.
00:47:56.560He also cared deeply about religious liberty earlier.
00:47:59.320Well, 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.
00:48:09.200Issues 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.
00:48:21.260And he's kind of had this goal of getting the court to fix that situation.
00:48:27.020Now, there are other justices who share his view on this.
00:48:30.800They think, well, when that case comes up, when a case comes up, we should just overturn it.
00:48:35.020But he knows that he won't have a majority if he goes too far.
00:48:40.140So he slowly moves things in the proper direction.0.91
00:48:43.860There's something called the Lemon Test, which had been a way to violate religious believers' rights.0.92
00:49:04.560Some people just want to be right, and they don't care if they have a majority.
00:49:07.720They don't care if it actually gets to the proper result.
00:49:11.740And 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.
00:49:21.280You 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.
00:49:31.020You just do the, you know, that's the only thing that we should care about.
00:49:33.800You also have people in the conservative movement and sometimes the conservative legal movement who say, we just have to win.
00:49:39.500We just have to achieve what we need to achieve and who cares how we get there.
00:49:43.180For the conservative movement and the conservative legal movement to be healthy going forward, they need to balance both principle and pragmatism.
00:49:53.800The whole point of having principles is to help people.
00:49:58.540And if you're not thinking about how to pragmatically help people with those principles, it's just sound and fury.
00:50:07.140And 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.
00:50:31.300He's done a ton for religious liberty, especially in the past few years.
00:50:34.800A lot of these wins that I think some people think, wow, suddenly we just have this like
00:51:20.460Oh, I mean, certainly any of the justices can retire at any point for any reason.
00:51:25.080There's been a lot of pressure to get Thomas or Alito to retire.
00:51:29.680And 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.
00:51:42.840So 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.
00:51:53.640And in fact, Chief Justice Roberts has been there longer than Alito, albeit only by a few months.
00:52:00.320And has also had a much less stellar record of success on the court in terms of what conservatives had hoped to achieve.
00:52:06.760So I do not think it's good to pressure justices to retire.
00:52:11.060That's a decision I think that they should make.
00:52:13.400But if you were to pressure, maybe pressure, you know, why Thomas has already pretty much indicated he would like to go out feet first.
00:52:21.280And that is because of what the left put him through, and he just does not want to give them a victory.
00:52:27.420Although, I guess you could say it would be a victory if a Democrat is elected and gets to replace him.
00:52:33.600And how old are they? Do you know off the top of your head?
00:52:36.200I think Thomas is maybe 77. Alito turned 76 this month.
00:54:27.220I think Alito is a young, seemingly young person with a lot of energy. And I would just caution
00:54:34.900people who are trying to pressure that Alito and Thomas are undoubtedly the best justices
00:54:42.000on the court right now and losing them would be a huge loss because the three Trump appointees
00:54:47.780they're still somewhat gaining their foothold and one hopes that they will increase the amount
00:54:55.800of courage they have with time and the amount of boldness they have with time but they have
00:54:59.640not demonstrated it quite as much as you might have hoped yet yeah and that's a little bit
00:55:04.820of my concern. Obviously, Trump would do a better job of appointing a replacement for Alito or
00:55:09.860Thomas than a Democrat would. And so we'd be happy about that. But his three appointees so far are
00:55:15.540not Alito and Thomas. I'm not saying they're all bad, but they're less reliable. We can't say 100%
00:55:21.240every time. I would have never guessed that Gorsuch would have gone the way that he did on
00:55:24.680the Bostock case. And that was horrible. And that's been really, really hard for conservatives
00:55:28.920fighting against that and fighting for Title IX. So I'm a little nervous about who would replace
00:55:34.660them even under a Trump presidency. So. Now I do, I totally agree. And the Bostock decision,
00:55:40.000I think is completely indefensible. And Justice Alito, as I tell the story in there, has spoken
00:55:45.340at length about how much he disagrees with his friend, Neil Gorsuch, on that decision and why.
00:55:50.820But it is also true, and this is something I think conservatives should keep in mind,
00:55:54.880this is undoubtedly the best court we've had in history. It may not be doing as much or as quickly,
00:56:01.860doing it as quickly as people would like. But the caliber of the vast majority of the justices
00:56:08.140is just so far above what we've seen in our country's history. Their intelligence,
00:56:14.380their writing ability, their academic credentials. They are not the politicians that we saw in the
00:56:20.560past on the court. And so people should keep that in mind too, even with the disappointment that
00:56:24.940people understandably feel about some of their decision. I like it when they get a little sassy
00:56:30.100sometimes and their own intellectual speak. Like I think that Thomas sometimes when he's talking
00:56:35.240about, say, Jackson, Justice Jackson, and the things that she that she says, maybe sassy isn't
00:56:42.580the right word, but he will directly go after like, you know, in layman speak, this is the most0.95
00:56:47.600ridiculous thing that I've ever heard. Or that is such a misunderstanding of the law that she's0.72
00:56:51.740citing. I kind of appreciate when they spar back and forth in that way. Yeah, I love when they
00:56:57.020discuss with each other. It's also true that while Kagan, Justice Kagan, is respected by her
00:57:02.800colleagues and is recognized as an intellect, I wouldn't say the same is true of her two left-wing
00:57:10.660colleagues. Sotomayor and Jackson. Sotomayor, I remember, there was something recently where
00:57:17.280she totally did not understand the science of either reproduction or gender or something like0.98
00:57:22.760that. She made a really stupid comment, which you expect even when you disagree with someone. Okay,1.00
00:57:27.100but they're probably smarter than me. But when you read something like that, you're like, I'm not
00:57:31.440sure. I don't know. I will say someone at the court, highly placed, said that Justice Jackson
00:57:38.060makes Justice Sotomayor look like a philosopher king. And I wouldn't say that Justice Sotomayor
00:57:44.180had the best reputation prior to that, even among the left. You might remember when she was nominated,
00:57:48.960Many prominent scholars on the left said she really is not going to she's not going to convince anybody.
00:57:54.460She's not going to persuade. You need a higher caliber justice.
00:57:58.280And 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.
00:58:09.300I mean, you saw even say what you want about Justices Kavanaugh and Justice Amy Coney Barrett.
00:58:17.300But 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.
00:58:30.320You'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.
00:58:41.200So it's probably not good for the left if they want to have influence on the court to have people like those two justices.
00:58:50.960What do you think is going to happen with the birthright citizenship case?
00:58:53.520I actually got to attend oral argument for that.
00:58:56.360And normally oral arguments are half hour each side.
00:59:01.400And the reason why is because the court has literally never considered this issue before.
00:59:05.980A 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.
00:59:22.180And 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.
00:59:40.480And I would not be shocked if they found significant persuasion or persuasiveness.
00:59:49.680So, 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.
01:00:04.300So 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.
01:00:24.420Like 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.
01:00:39.140I 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.
01:01:02.500Right. 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.
01:01:12.520It 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
01:01:28.440They pay a ton of money to the surrogacy companies and to that woman here.
01:01:32.520The woman gives birth, ships the child after a few months back to China.
01:01:37.820And then, you know, they come back here.
01:01:39.440They train at our universities, fully indoctrinated by the Chinese Communist Party, and then wield all this power.
01:02:21.780to say that these people are full citizens
01:02:23.860And 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.
01:02:45.900That'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.
01:02:58.620So to some extent, that kind of view might be persuasive, even with the Chief Justice Roberts.0.69
01:03:03.400Not like I'm holding my breath for that.
01:03:07.280How likely do you think it is that the Democrats would and could pack the Supreme Court?
01:03:12.700Oh, 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.
01:03:42.700instead of rule of law. So what do you do? You pack the court. And even when there was the
01:03:47.940presidential election in 2024 and starting to hear it even before that, you had a lot of
01:03:54.960prominent Democrats just to openly call for it. So I do think, particularly given the more
01:04:00.520radicalized nature of the Democrat Party, that will become a major issue going forward.
01:04:05.820And for those who don't know, packing the court would be adding a number of seats,
01:04:09.500however many seats and then throwing the activist left-wing judges on there and then it becomes
01:04:14.720much harder for when you know republicans take office to replace those it's just harder because
01:04:22.100you got you suddenly have a liberal majority and you've got more people that you would have to
01:04:26.820battle against yeah and the constitution does not stipulate the number of justices on the court
01:04:31.160interestingly enough but it has been set for a really long time you know since the
01:04:35.440you know, early 19th century that it's been at nine. And you had FDR threatened to pack the court
01:04:41.800and he wasn't able to achieve that, although he did end up appointing all nine. He served for so0.76
01:04:46.860long that he ended up appointing all nine justices. But he wanted to do that because he was frustrated
01:04:51.900that the court was ruling unconstitutional his various New Deal plans. And so packing the court
01:04:58.940isn't about changing the number of justices on the court. It's about doing it for political gain.
01:05:03.800And 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.
01:05:19.120And 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.
01:05:34.260What do you hope that someone who finishes this book, like one thing that they walk away with that would make you just smile?
01:05:43.140Obviously, if you're interested in the Supreme Court, there's a lot of inside stuff about what goes on there.
01:05:48.480And I've always loved learning about the court that way.
01:05:51.640But 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.
01:06:02.840And 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.
01:06:11.440Yeah. 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.
01:06:39.900Yeah, that's so good. Thank you so much. This is fascinating. People are going to learn so much,
01:06:44.300but there's a ton of juicy stuff in your book that we did not get to talk to. So if people
01:06:48.700want more stories, more accounts, even more about the leak, they need to buy your book and it's
01:06:52.840available wherever books are sold, right? Exactly right. Okay, perfect. Thank you so much, Molly.