Episode 15 | Alito and the Court

Our hosts, law professor Ilan Wurman and Kathryn Johnson, get a full hour with Mollie Hemingway, editor-in-chief of The Federalist and author of the new New York Times bestseller, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. They touch on several themes in the book and connect them to current issues and news. Is Alito an originalist? What is a "practical originalist"? Why did he make fun of Justice Scalia, saying he wanted to know what James Madison thought about video games? What do the attacks on Alito show us about the Left's strategy and tactics more broadly? What is "demosprudence"? The "Greenhouse effect"? And what's the Shadow Docket? Our hosts then talk with Mollie about the recent Voting Rights Act decision, about election integrity more generally, and here takeaway from the birthright citizenship oral arguments, which she attended. Enjoy and please like and subscribe!

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Transcript

SPEAKER_02 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, what's on deck?

SPEAKER_01 0:05

Well, we're joined by the great Molly Hemingway to talk about her new book, Alito, and so many other topics. First, we'll talk about interpretive philosophy. What kind of originalist is Alito? Second, we'll talk with Molly about Democrat lawfare and election integrity. Third, we'll get her take on the recent SCOTUS Voting Rights Act decision authored by none other than Justice Alito. And fourth, we'll get her take on the birthright citizenship case.

SPEAKER_02 0:30

Let's dive in. I'm your host, Elon Werman, a law professor at the University of Minnesota Law School.

SPEAKER_01 0:48

And I'm Catherine Johnson with Center of the American Experiment.

SPEAKER_02 0:51

Don't forget to hit that like and subscribe button. And of course, if you want sneak peeks and other content, please follow our Substack, rationally based.substack.com. We are so excited for the conversation today. Molly Hemingway, welcome to the show. It is so great to be here with you both.

SPEAKER_01 1:06

Well, Molly is, of course, the editor-in-chief at The Federalist and author of a number of great books, most recently Alito, which is an incredible book. We both enjoyed it so much. And I did just see that it has officially become a New York Times bestseller. So congratulations, Molly.

SPEAKER_00 1:23

Yeah, I'm thrilled by that. I knew I wanted to learn more about Justice Alito, but I wasn't sure how many other people would. And so learning that there's a lot of curiosity about him and desire to know more about this very consequential justice, it just makes me happy.

SPEAKER_01 1:38

Yeah, well, why don't we start there? We uh why don't you give our audience just a brief introduction to who uh Justice Alito is and what drew you to wanting to write this biography?

SPEAKER_00 1:49

Yeah, Justice Alito was the second of President George W. Bush's picks for the Supreme Court. The first, of course, Chief Justice John Roberts. Uh John Roberts joined the court in 2005. Alito joins in early 2006. So he's been there for 20 years. Prior to that, he was a federal judge on the Third Circuit for 15 years. And prior to that, he was always in public service at the Department of Justice as the U.S. attorney of New Jersey. And he has had this, you know, the 20 years that he's been on the court have been some of the most interesting years on the court as that conservative legal movement tried to change the court from being a legislature of people who just ruled according to what they thought the answer should be into a court that, you know, very different opinions on the court, but you have now a majority who are originalists, who that which means that they want to adhere to the original meaning of the Constitution at the time that it was written as one of their first approaches when interpreting the law.

SPEAKER_02 2:54

So let me jump in on the originalism question. By the way, to the audience, one thing that I loved about Molly's book is that it isn't just a biography about Sam Alito. It's actually just a biography of the Supreme Court today and the liberal attacks on the court. And Justice Alito is just sort of the central main character, I feel. And so it's not just a biography of Alito. You will learn a lot about the court itself, which I thought was really terrific, uh, Molly. But on the originalism thing, so don't take this the wrong way. And Justice Alito, we joke, you're a friend of the pod. Please don't take this the wrong way. His autobiography is coming out, right? And it's called A Practical Originalist. And the joke was kind of at the time, like, oh, is this a biography or is it autobiography? Because a lot of people were like, oh, is he really an originalist? Or is he more like a conservative living constitutionalist? So that's kind of the joke, but I do think he's a flavor of originalist. But as he says, and you say, he's a practical originalist. And I wonder what that means. So I think it was in chapter four you had this um description of Justice Barrett. And I think you uh quoted John McGinnis, Professor McGinnis, uh, and you said, you know, Barrett's been thinking about statutory interpretation and constitutional interpretation for years as a law professor, and she meticulously tries to apply rigorously kind of her theoretical framework. But Justice Alito, he's been around the block a long time. He's been a federal prosecutor, he's been a judge for a long time. He's just more practical. But what so can you tell the audience, like, what do you mean by practical? And does there come a point when you're so practical that you don't look originalist anymore? Or so I defend that label, I suppose.

SPEAKER_00 4:24

Well, I feel like there are a few different ways we could go at this. So, first off, you've heard some people complain about Amy Coney Barrett. And they, I think this is partly because her defenders said that she wasn't just going to be a good justice, she was gonna be the best justice who had ever existed in the entire history of the Supreme Court. And as we all know, it takes some time to get your footing. It takes some time to, you know, it's it's a it's a dramatically different job than what any of them have had prior. You know, even when you're an appeals court judge, you're just applying what the Supreme Court precedent is for a given case. That is much different work than interpreting the law as a member of the Supreme Court. And so when people, you know, sometimes I'll pick up on tension between Thomas and Alito and Amy Coney Barrett or one of the other newer justices. And I think that it's mostly an issue of timing rather than a fundamentally different approach to the underlying question. And so I think one of the examples I gave in the book dealt with a longstanding issue for Justice Alito, and that is protecting the religious liberty of minority religions, or just really protecting people's religious rights. And he was on the Third Circuit when Justice Scalia uh put out Employment Division v. Smith. And that dealt with a Native American man who was smoking peyote as part of his religious tradition and loses his government job. And a lot of people didn't love that employment division v. Smith decision. And one gets the feeling that Justice Alito also didn't love it because even when he's on the Third Circuit, he's working to protect rights that would not normally be protected under that employment division v. Smith rubric. So he gets to the Supreme Court, he's been there for 20 years. There's a case a couple years ago dealing with a city discriminating against Roman Catholics uh in the foster care work because they believe that marriage is between one man and one woman. I think it was a unanimous decision of the court, but uh one of Justice Alito's colleagues had suggested maybe we make a run at Employment Division v. Smith. Alito puts it together. The younger justices are asking for, they're like, ah, we'd kind of like more time to think about this. You take an Alito and a Thomas who've been on the court for a long time, Thomas for 35 years, Alito for 20, they understand you might not always have an originalist majority on the court, and that there's a lot of bad stuff that needs to be fixed while they have the time. And then the younger justices think, well, I've scott here. I've got decades to work on this. And so you see, they're not like totally disagreeing on the underlying issue so much as the timing. So that's what I was trying to show there. Now, as for the practical thing, I think what's interesting is if you look at their numbers, Justice Alito, his votes aligned so much with Justice Scalia and so much with now, so much with Justice Thomas. They're very they they have a very high percentage of the cases in which they're voting together. But you look at a Scalia or a Thomas, and they are really approaching things philosophically and theoretically. They like to just kind of pare it down to the big underlying issue, you know, a First Amendment issue. Whereas Alito, he is much more going to look at the facts of a given case. And he learned this from his, the judge he clerked for on the Third Circuit, Leonard Garth, who always just kind of started with the trial record. And rather than going to the big broad issue, they're gonna look at the facts of the case. And I think that's what the practical aspect means. It also means that as a federal judge for a long time and as a prosecutor for a long time, he's thinking, what are the practical implications of this argument that we're putting forth? And are we giving the type of clear direction that we need to for people to be able to implement this so that we have law and order rule of law? So I think in a way, what you're asking about, Elon, is almost like a little different, which is he's he's very consistently conservative. So um, but that's a little bit separate from what I just talked about.

SPEAKER_01 8:35

Well, you also show uh one of the differences between Alito, and I think you point out Barrett, too, is Alito has never shied away from taking on tough cases or ones that might be deemed political by people outside the court. Um, and other justices definitely don't think like this. They seem to want to avoid those cases and think the court should have nothing to do with issues that might become political. And what I gathered is Alito really doesn't think that way. Is that just a matter of timing as well? Or is that part of a different part of Alito's legal philosophy?

SPEAKER_00 9:07

I don't know. I mean, I think there's an aspect of pragmatism that does think about this. You don't want to have a case come up in which it could go very poorly for the overarching issue that you want to advance. So I think that there are justices who are careful about which cases they grant cert to and when. Um, and they're looking for a you know, particular set of facts that will make things work in the best way possible again for that underlying issue that they care about. But I think there's also an interest, you know, I try to be like fair to all the people that I'm covering here. People look at Chief Justice John Roberts as someone who really has this overarching concern with the integrity of the court. I actually think that's a good concern to have. I think one of the problems that justices have, not, you know, not just Roberts, but this happens all the time, they do not make good politicians. So every time they're trying to act politically, it just works poorly for them. They weren't brought up in a campaign environment where you have to win elections and you kind of understand how to feel out what the political implications of something will be. And so you take the Obamacare decision, for instance, where Roberts really angered the four uh four of his colleagues by switching his vote midway through writing the majority opinion. So they were gonna rule Obamacare unconstitutional, and then he switches to rewriting it so that it can be viewed as constitutional. The four that he had originally signed with along with, they were so upset they didn't even sign their dissent from it. They were just like appalled by it. And they also felt that by opening himself up to political and media pressure, it didn't increase the integrity of the court. It actually undermined it and made it more susceptible to media and political attacks in the future.

SPEAKER_01 10:58

Well, Dobbs, of course, is uh the main example of, you know, what the kind of challenges Justice Alito was clearly willing to take on, even if they were political. And you detail the amount of outside pressure that was on all of the justices uh during that time. What has happened as a result of that Dobbs decision and um the assassination threats, the protests at the houses of the justices? Has that permanently altered the court? Is it more political now than it ever has before, or not really?

SPEAKER_00 11:30

Well, just as a little bit of a backup, Catherine, I think it's important to remember that since Roe v. Wade was handed down in 1973, there's been broad agreement among some a surprisingly diverse group of people that that was just bad law. It was a bad interpretation of the law. You have people on the left like Ruth Bader-Ginsburg, or, you know, very well-known law professors who say, I support abortion. I think it should be legal, I think this decision is a joke. So you have the conservative legal movement really gaining power then in the in the 80s. And one of the things that unified them, again, whether they were pro-life or not, was we have to move away from decisions like Roe v. Wade. And we also have to overturn Roe v. Wade because it was such a weird decision. It was affecting other cases that had nothing to do with it. You know, you'd have to rule a certain way to make sure that it was, it couldn't be used as an attack on Roe v. Wade. You had a lot of pressure. Every time the court did consider whether to overturn Roe, they would even have the votes like they did in KCV Planned Parenthood in 1992. And then there would be major pressure and there would be some, you know, somehow it would fall apart. And so I really enjoyed telling the Dobbs story because you need that history to understand how intense the stakes were, how intense the pressure was, and uh to see why Justice Thomas assigned the opinion to Justice Alito, how difficult it is to keep a five-person majority together. They are, you know, you've got, they're all originalists, they're all self-identified originalists, but they all have their different particular issues, some some of which are in conflict with each other. You know, Thomas has his particular views on the 14th Amendment that basically nobody else shares. So you have to write it carefully. So they do all that and they get it done. They get it done in early, he gets it, Alito gets it done in early February. It leaks in early May. And yes, all hell broke loose. Their homes were under attack. They had to deal with um being moved to secure locations, they had to put on bulletproof vests, they had their addresses posted on the internet with the full support of the attorney general and the president. And there are laws against protesting a federal judge for the purpose of overturning a decision, which is what this obviously was. You have Kavanaugh facing an actual assassin at his home. And it it was unbelievable. It took not just moral courage to do what they did, but it took a certain amount of physical courage. And it's particularly difficult, I think, when your spouse and children are being affected to have that kind of courage. Um, and I do think that changed things. Although I do think things are, you know, pretty good on the court, particularly considering what happened there and what I reported about the liberal justices delaying their dissent, which which was very difficult on their conservative colleagues.

SPEAKER_02 14:27

Molly, can I jump in here and say a few uh follow-up things? I love the part about John Hart Ealy, which I'd I'd forgotten that he'd said this about Roe v. Wade. So just so the audience knows, John Hart Ealy was this famous, you know, liberal um law professor, dean at Stanford Law School, taught at other prestigious institutions. And his attack on Roe v. Wade, he basically said, look, it doesn't even pretend to be constitutional law, which is the problem with it. And then you get to the Casey decision. And actually, in the Casey decision, the justices literally said, Oh, we can't overturn Roe v. Wade because then it would look like we're succumbing to pressure. It's like, well, wait a minute, but by not overturning Roe v. Wade, you also look like you're succumbing to pressure. And so uh you just have to kind of put that aside. And I liked that, you know, Justice Alito seems to put that aside. And in his uh Dobbs decision, he also says, look, we can't pretend to know the results of this decision today or the effect it will have on the political process. And so I suppose, I mean, I have one um uh serious question and then a kind of flippant question. The serious question is just since we have you, what do we think, what do you think about the long-term effect on the pro-life movement, right? So after the Dobbs decision, there was supposed to be this red wave in the midterms, it never came. A lot of people say the red wave didn't come because of the liberal, the liberals were fired up over the Dobbs decision. We had some losses uh in the pro-life movement, had some losses um in various states. Now, in one sense, of course, that's how it's supposed to be. Like we returned it to the democratic process. But do you have some sort of um prognostication about the future of the pro-life movement? Does the Dobbs decision require Republicans to moderate their position and actually get serious since now their laws are gonna actually be enact, be constitutional? So do they have to rethink things about like rape and incest exceptions? Will it moderate Republicans? Will they keep losing this issue in certain states? What's your take generally, I guess, is the question on the effect on the pro-life movement and where it's going next?

SPEAKER_00 16:22

The first thing I want to point out is about your question, it shows that the way the media responded to the Dobbs decision was just completely inaccurate and unfair. Alito did not say, as some people, some pro-life legal scholars would like, well, children, unborn children are protected under the 14th Amendment. You know, they did he didn't do anything like that. He just said the abortion is not mentioned in the Constitution, and we all have to be honest about that. And therefore, it is returned to the people through their legislatures. It's incredibly modest. And as you point out, that means some people are gonna push for more uh more restrictive regulations, less, you know, people are gonna do different things over the course of time. And some people will want to protect unborn children at an earlier stage or a later stage. Like there are all sorts of things that can happen, but now you actually can fight about that. In a way, I kind of think that what happened there was similar to the defeat of the Soviet Union. So for a long time, you had this like broad coalition that all thought the Soviet Union and communism was a threat that needed to be countered. And some of them were that way because they cared about national security, and some were that way because they cared about the godlessness, the forced atheist atheism of communism. Some people really cared about free market economics, but it united a bunch of different people. Sort of similar with the Roe v. Wade being a galvanizing issue for not just pro-lifers, but but conservative legal scholars and others who just wanted rule of law. Well, once you, once you take care of that, and it's not just that, right? You have Justice Thomas doing this Yewman's work on the Second Amendment. You have Chief Justice John Roberts doing this amazing work leading the way on affirmative action. So when you're unraveling all of these bad things that happened during the court's kind of like free-for-all legacy, I think the more, you know, I think what's interesting is what happens to the originalism movement when all of the things that they wanted to have done get, you know, get done. And I think you're seeing that, not not that we're there, but you're seeing that with some people exploring different, you know, uh what they call conservative legal philosophy. So I'm I'm interested in tracking that. And then as for the pro-life thing, I think as someone who, you know, who I care deeply about this issue, it was so crazy that you had to fight just to get to the starting line. It took 50 years just to get to the part where you can actually fight for whatever it is, however you want to protect women and their children. And so we're in the early stages of that. So I'm not sure if I'm the best at prognosticating. I think technology might be a bigger disruptor than um than than the Dobbs decision. But I also am heartened by how many young people in particular understand that life is precious and that we should be working to protect women and their children and their fathers. Yeah.

SPEAKER_02 19:24

So my flippant question, sorry, Catherine, that um I read at the very beginning of your book the protests over, you know, Kavanaugh. And obviously they're thinking ahead to the potential reversal, overturning of Roe v. Wade. And you had, I think it was a topless woman breached the barriers and went up, you know, to the steps of the Supreme Court, and then everybody, a lot of protesters followed. Was that an insurrection? Or is there a reason that that was it? Were they trying to stop official proceeding?

SPEAKER_00 19:49

Or like what's the is this sort of I don't think that's flippant at all. You know, when you look at what happened, and and Carrie Severino and I wrote that book on the Kavanaugh Confirmation, you had routine disruptions of a constitutional process, which is the confirmation of a Supreme Court justice. And you even had leaders in the Senate helping with this, you know, providing tickets to people who would then disrupt the hearings that that would uh deal with this confirmation. And you had, not only did you not have any sort of like insurrectionist investigation or, you know, there were arrests, but the way the arrests were handled were basically like, oh, you're getting a ticket and you'll be out in like a couple hours or less. And it is so different than how the disruptions and violence were handled in 20, in yeah, when January 6, 2020. And I think that that is that is important. Oh, you're 2021, sorry. That is an important issue because we all have to be under the same rule of law. And when people sense that judges in a certain area are treating their favored people one way and their disfavored people another, it really is corrosive to that. And that has far-reaching consequences.

SPEAKER_01 21:03

Well, that really stood out to me in the book, Molly, because I think I'm very used to the narrative of life's harder for conservatives, you know, like conservatives are gonna have it harder. What if it, what if the shoe is on the other foot? I think a lot of us are almost sick of that because it's like, you know, that's that's true. But I always thought of the court as a place where that was a little bit different, you know, and I think we should look at it that way. But in reality, you list the people putting on bulletproof vests. Well, those are conservatives putting on bulletproof vests. They aren't the liberals. And so that is a huge difference in the way that they just had to go about their everyday lives and has to impact them on some level, I would think.

SPEAKER_00 21:39

Well, and I do think that they could handle these massive political and PR campaigns against them. I mean, they they handle them fine, obviously. But one of the things that makes it so infuriating is that they are scrutinized at a level that their liberal colleagues are not. So you had famously, you know, Ruth Bader Ginsburg glowed. Global traveler, Briar, global traveler, finest wines, best chocolates, everything taken care of. And there was really no scrutiny. I mean, uh, Justice Scalia also uh had had a lot of this. So to go after Justice Thomas and Justice Alito, and they're not even like the far they're not even like close to the most global traveling socialites, uh, you know, in Alito's case, he's like practically reclusive. Um it's the double standards that are are problematic there. And it's also just the lack of understanding of what their colleagues are going through. I don't know if all these people are so circumspect that they're not even sharing, you know, that much about what they're going through. But when you have colleagues who are, you know, they go to Harvard law or Yale law and the red carpet is rolled out and they're treated like royalty. But the far more influential and far more impressive conservative justices aren't even invited. And if they are, you know, they they won't serve them meals on campus because the students might protest. And they themselves can't go out to dinner with their own families because they might, they might face violence. It's it's it's not tenable, really. And I think the left actually understands that, and what that's why they're running these types of campaigns. They want people to know that if you don't want to have this kind of life that they're giving Justice Thomas or Justice Salito, all you have to do is rule the way they want to. And it's just like Chuck Schumer going on the steps of the Supreme Court and threatening violence against Justice Kavanaugh and Justice Gorsuch. It's it's it's like from the low levels to the high levels of the left, you're seeing these kinds of attacks on the court.

SPEAKER_02 23:40

And I know Catherine and I had some more questions about sort of left tactics, but before we leave the topic of originalism, um, I do want to ask, I love, I was hoping you would talk about the First Amendment cases. And you did uh in the the practical originalist chapter, I think. I think it was chapter six. Um and so in these cases, Justice Alito was basically a dissenter, not quite a dissenter in one of them, but in two of them. In two eight to one decisions, one was the Stolen Valor case, I think, where um eight to one, the Supreme Court held you have a First Amendment right to pretend to have won the Medal of Honor or something like that. And Alito, I think, was like, that's crazy. Or I'm not the Stolen Valor case, I'm sorry, the Stevens case, the animal crush video case. Uh and the other one, uh so eight to one, you have the right to sell animal crush videos. And I'm we're not gonna describe to our audience what animal crush videos are. You can look it up, it's horrific. And Alito's like, this is this is crazy. In the the protesting the dead soldier's funeral case was another example, where eight to one, you're allowed to protest at the dead soldier's funeral and and heckle the family. And Justice Alito said, you know, this is this is crazy. This is still a tort. You know, this isn't public figures. And then in Brown Bay Entertainment Merchants was this case involving can advertising violent video games to minors. And I want to seize on that because you talk about this sentence uh uh in oral argument, and we'll get back to Alito's brilliance in oral argument, where he said, I think Justice Scalia wants to know what James Madison would have thought about video games. Would he enjoy them? And you know, so immediately, you know, is he attacking originalism there or just a caricature of originalism? Does the Brown v. Entertainment merchants and these First Amendment cases give us an insight as to what makes him a different kind of originalist? And I just wanted to kind of alert the audience to that line of cases uh that are talked about, that is talked about in your book and to kind of see what light that sheds on Justice Alito's jurisprudence.

SPEAKER_00 25:33

Aaron Powell So I first have to say that uh someone who we probably both know had told me he's like a free speech, libertarian maximalist and also a constitutional law scholar. And he said, I have to admit that Justice Alito's dissents in these cases are the, you know, and he's the only person who can make me think, am I sure I have this right with my with my approach to these? And I think it it goes back to what we were talking about before there, though. You take the violent video games thing. He actually votes the same way as Scalia does on it, but he's so interested in the underlying record and just taking time with it. Uh Scalia is someone who's just, he kind of like sees some, and a lot of justices are like this, and I actually admire this. They look at something from afar and they're like, this is just about free speech, and we just have to be clear on free speech. There is a goodness in that. There's also something to be said for looking at that underlying record. And in the in the Westboro Baptist case, I actually think that is the most convincing of these dissents or you know, where he kind of differs from his colleagues. Because they look at it and they just go, it's a free speech thing. It's awful what these people did, but they have a free speech right. They're really concerned about politics, and and you have, you know, you have to be able to go after the government, even if this is the way you choose to do it. And Alito goes back to the trial, the original trial record, you know, because the family of the of the dead Marine had received a massive settlement for the distress that he'd that they had put them under. And he goes back to the original trial record and he sees they're not actually doing this for politics. They're doing this to intentionally target this family and this Marine. They were dealing with things that had nothing to do with politics and being very personal about it. And so it's not that he doesn't agree that they have a free speech right to protest the government. It's that he thinks they could have handled this case much more narrowly by just sticking with the tort. And he he seems to be more willing to do that uh than some of his more philosophical colleagues. But he himself says, I always begin with the original meaning of the Constitution. And I think that's, you know, that's just a good way of putting it. He begins with that, but he doesn't end with that. He is happy to look at the record or explore the complexities as well.

SPEAKER_01 27:52

I love that you wrote this book now, Molly, because everything you describe is something I didn't know was going on as much in the legal movement, but is going on parallel in politics. It's being based. That's literally our our podcast is called Rationally Based. It's this movement that's a little more populist, it's a little less away from the um, you know, the conservatives of a couple decades ago, and it's a little bit different, but it's still very much um principled. And so I thought Alito reflected that in a really um a great way. That I thought he reflected this movement that was going on in politics so well. And maybe it would be the practical originalism. Um, maybe that's the best name for it, but I just loved reading about his legal theory because to me it seemed like it was just perfectly reflective of what the country is going through as a whole.

SPEAKER_00 28:38

Well, Catherine, that I thank you for saying that because that's actually one of the big things that I was really interested in when I started this. You have on the right right now these people who say, you know, we just have to have our principles, and it doesn't matter if they're applied, we just have to have them. And as someone who, you know, I'm motivated by principle, I understand that. You have the these other people who say, like, I am so sick of those people who just care about principles. I don't even care about them anymore. We just have to win. Well, I think with Alito, you see that it's quite powerful to put these together to, of course, be based in principle. Like, why else would you be motivated, like, what does winning mean if you don't have principles that you're that you're trying to apply? And then also to be strategic about how they happen. And I think this is another distinction about why he works so well with Scalia and why he works so well with Thomas. They are very principled people who are just like, this is the way it should be. And I'm gonna be over here where it should be. And Alito might want to be over there with them, but he's thinking, okay, well, how are we gonna get there? We're not gonna, you know, if I just agree with you guys and stay there, that's three votes or two votes. You know, how do we get the court to see things in this in this better philosophical way? It's partly by keeping a majority together and they all have their own things and moving the court in that direction.

SPEAKER_02 30:06

So that's the tactics on, I guess, the based side is principles don't matter if they don't actually get you anywhere in the real world. But speaking of tactics, so by the way, maybe that maybe he'll assume the mantle of based originalist. I don't know. We should ask him if he has uh his ear. Um but uh so I wanted to shift quickly to sort of the left's tactics, which Catherine already started talking about. We both learn new terms in this book, even I learned a new term. Demos prudence, I hadn't heard before. Catherine, what was yours?

SPEAKER_01 30:35

It was uh the greenhouse effect, which I loved. I didn't know, you know, the Linda greenhouse of it all. I thought that was really interesting.

SPEAKER_02 30:42

And both reflect, in a way, something outside the law that liberals, including liberal justices, like to use to like move things in a favorable political direction for them. So can you give our audience like what is demosprudence? What is the greenhouse effect? And then we'd love to talk about the shadow docket a bit in relation to, again, uh leftist tactics, so to speak.

SPEAKER_00 31:03

Yeah, so demosprudence, which Lanny Guineer, I think, coin coined the term, reflects how when you have no power on the court, you have, you have to use whatever power you have. And so one of the things you can do is to verbally give your dissent to a decision that came down. And I think Ruth Bader Ginsburg actually was very good at this. I don't support demos prudence, but you can recognize that Ruth Bader-Ginsburg was able to use the spoken dissent as a way to get her message across. And it was outside the law. So early on, the when he's on the bench, um, Justice Alito authors this decision dealing with what was the it was a very famous name. It was Goodyear, the Goodyear tire company. I'm forgetting.

SPEAKER_02 31:51

Yeah.

SPEAKER_00 31:51

Anyway, there's like a famous piece of legislation named after this woman who was dealing with uh discrimination she felt at her workplace. And there are all sorts of ways that you can go for relief, but they have they're time limited. And the whole idea when when Congress passed these laws was to make sure that people had were dealing with things in a quick fashion. She like waits 20 years. And so Alito just writes up a basic statutory piece about how she probably should have used different methods, but she used these methods, and the timing issue really was important for the statute in question. Um Ledbetter? Leadbetter versus Goodyear, is that right?

SPEAKER_02 32:34

So Yeah, because that's what the Obama administration, the Obama signed, the Lily Leadbetter Fair Pay Act.

SPEAKER_00 32:39

Lily, that's it. Thank you. Lily Ledbetter. So Ruth Bader Ginsburg is just appalled by this. And she just reads this dissent, basically saying Congress should change the law. And a lot of people view this as like one of Ruth Bader-Ginsburg's great things that she did. But I always thought it was funny that the majority opinion just said, well, that's not what the law says, and we have to we have to apply the law as written. And she says you should change the law, which is completely outside the normal role of a Supreme Court justice. So Congress does that, and then they viewed this as like a rebuke of what the Supreme Court said instead of an affirmation of what they said. The law, if you want it to be different, make it different, and then we'll apply that law as written. Um, but she would always do these dissents. And I just want to point out she really did have the respect of her colleagues. They did think she was very good at statutory interpretation. They do also understand that if she were on a court that had a different composition, she would have been a much more pivotal figure because she was on there with Kennedy for so much of the time and he was willing to kind of go back and forth. He ends up being this pivotal figure, not because he's smarter than she is or um, you know, like more impressive, but just because of the makeup of the court. Uh so demos prudence. I also thought it was funny that Sonia Sotomayor originally says she thinks that that's like inappropriate, and then she starts doing it a ton. And you, and the whole idea, again, is speak directly to the people to undermine the court. And, you know, whether you think that's good or bad is up to you. Linda Greenhouse was the longtime left-wing activist who served as the Supreme Court reporter for the New York Times. And I found some really interesting things in reporting this book, you know, in terms of what the justices feel about this type of media pressure. So Linda Greenhouse would praise the people she agreed with, and she would just be vicious against the people she disagreed with. And it kind of worked. Meaning, if you don't take Alito and Thomas, like I don't remember when she retired, it was, you know, a few several years ago. But she was able to kind of pressure people into like, if you want better coverage, you just got to soften your views and move more in my direction. And so people called that the greenhouse effect. We used to care about climate change, apparently, and the greenhouse effect made more sense as a term at that time. But uh I do think it's interesting how the liberal media and other left-wing activists use flattery or derisiveness to accomplish their goals. And you saw this even um, was it Vladik did this thing a couple of years ago where he's like, actually, Amy Coney Barrett is amazing and she's wonderful and she's the best. And then she disappointed him because she ruled on some cases in a way that seemed to indicate she wasn't as open to his flattery as he had hoped for.

SPEAKER_02 35:36

So the another thing we talk a lot about is the shadow docket. Um, and this again relates to kind of I look, I don't want to say leftist tactics, but you know, tactics deployed by the left a lot. And one of them, and you talk about this in your book, and we've talked a lot about it on our podcast, where we defend the shadow docket actually quite um rigorously, uh, is that it's kind of this philosophy of the Supreme Court can't get them all. We're gonna sue, we're gonna throw everything at the board, see what sticks, some crazy judge in some jurisdiction somewhere, probably Seattle or Boston or in DC, they'll preliminarily enjoin all of these things. And then the Trump administration doesn't do anything for four years. It's totally handicapped without the shadow docket. And so you talk, uh which is just the emergency docket, right? And where the Supreme Court says, no, we're gonna let the administration's policy go through uh until um, you know, uh uh it comes up on the merits. So, what's your sense of the rise of the shadow docket? Alito gave a speech on the shadow docket um that was, of course, kind of derided as political and so on. Um, so what's your take on the shadow docket and how how good or not good it is?

SPEAKER_00 36:45

Well, I actually think this should be a less partisan issue than it has become. And there was a time when Elena Kagan and Sonia Sotomayor also didn't like the use of rogue district judges as an attempt to thwart the will of the people. It it happens against all presidents. It happens so much more against Trump because, as you note, it is a major strategy of a coordinated, well-funded left-wing activist campaign. That doesn't mean that it wouldn't, you know, if a Democrat is elected next, if you wouldn't have a bunch of right-wingers trying to do the same thing, and particularly if nothing is done to stop this effort to undermine the executive branch. Now, one thing I do think is good about the court in its current era, it seems to have wanted to devolve things back to Congress, the Article I branch that is so broken. You see this, you know, in their administrative law decisions and otherwise. You also see them saying that they think the executive branch should be allowed to function as an executive branch. And that has angered people on, you know, in different ways that they want to remove authority from this from the judicial branch to those and and get them back to those other branches. Nowhere near enough has been done on this. Um, and there need to be stronger rulings. You had that good decision, I can't remember, was it CASA, where I think Amy Coney Barrett was the author, and Alito and Thomas said we actually have to tighten the loopholes even more because people will exploit them because this is such a major political effort. Um, but I just don't like one of the things I don't like about the way people talk about it is they act like the Supreme Court is trying to have an emergency docket. Like they're not, this is not them. This is other people forcing issues upon them that they then have to deal with in an emergency manner, which does not give them time for full briefings. And I don't think it's good for, you know, I don't think they like it. And then you have people being upset with how they're handling it, but we could do a better job of of conscribing the how much of this is happening to get to the court.

SPEAKER_02 38:53

Can we uh, Catherine, turn to elections? I know there's a lot we want to talk about. And it relates to the Alito book. I do want to talk a little bit about rigged, uh, if you're open to talking about that, because we've talked about election integrity. Uh Rigged is Molly's uh second uh pre previous book, two previous books. Um so the VRA decision, which just came down. Not quite sure when we'll air this episode. It's either next week or the week after, uh, but it just came down a few days uh before we're recording. And in your book, you had this, you couldn't have known when this decision was gonna come down. But there was this tantalizing part of your book where I think Alito was preparing for interviews for Supreme Court like in the White House. Um, and he you said that the two areas of law he felt he needed to brush up on were like Indian law and the voting rights act. And that was it, right? That's all like you really talked about. And I was like, oh wait, did Molly fine anything about the Voting Rights Act? What did he think about the Voting Rights Act in the 1990s? Anyway, so I wanted to get your take on Alito's decision if you've had time um to read it, because it also relates in a way to left tactics um and using laws intended for other purposes to advantage them politically, right, in certain ways. Um, so um we had a Substack post about this, and we're gonna talk more about this on one of our episodes when we take a deep dive. But what I have described as the Democrat movement lawyer interpretation of the Voting Rights Act required maximizing Democrat voting power, right? You can't crack um, you know, Democrat voters or African-American voters, for example, because that's discrimination. You can't pack them because that's also discrimination. So you have to give them the maximum amount of districts uh that you can. And of course, that they're all they all vote for the Democrats, and therefore it's about maximizing Democratic voter power. Is uh Alito's kind of decision, um, I I guess what's your take on the decision and the impact of the decision? And were you not surprised, I guess, to see Alito be the one to kind of craft uh cobble together a majority in that case?

SPEAKER_00 40:53

Well, Elon, I forgot that I had that in there about what he needed to brush up on, but I was thinking last night about other parts of the book that deal with election districts. Like he is very influenced by his father. And his father was this nonpartisan research guy for New Jersey's legislature. He had to single-handedly redistrict the state after a Supreme Court ruling that said that the way that they created their Senate, which was just like if you are a county, you got a senator, that had been ruled unconstitutional. So he has he has to redraw the map himself. And just you think about how brilliant he would have had to have been to do that prior to the air.

SPEAKER_02 41:36

You say mechanical calculator, which in my head, I'm just seeing an abacus, by the way. Obviously, there was technology between the abacus and the computer. But anyway, it's kind of a brilliant image that that your book created when he was hand-drawing these. So sorry, go on.

SPEAKER_00 41:49

Well, no, and so he he that's like a formative experience for him is how the Supreme Court can make a decision that affects his own family life. And then when he's in college, he gets to go meet with Justice Harlan, who had dissented from that decision. And he was really, you know, he was interested in election maps from a very like in a in a way that no normal person would be at a young age. And so then to have him author this 6-3 decision that the vote, that section two of the Voting Rights Act cannot mean what you just said, Ilan, that you have to maximize districts this way by racist gerrymandering or racial gerrymandering. Um, I think, you know, it's a very important and big decision. But I bet he would have done exactly the same kind of decision on any other topic, because remember what we were talking about, that he likes it when the law is able to be clearly applied. So you take something like this. We have the 15th Amendment. What does it say? The states can't be racist when it comes to elections. Then you have section two of the Voting Rights Act, which becomes interpreted over time that you have to be racist when creating these voting districts. And I think it just created a mess. And Alito doesn't like messes. So this is a really newsworthy version of this, but I think you see it in other cases that he's handled that are much less interesting or politically significant. He wants that clarity and he wants to also have it align with the Constitution. Like the way he handled it, again, you saw Thomas and Gorsuch say, uh, the you know, section two should be thrown out. They're like, no, it's just it can't, it can't mean that you have to be racist, because that would then mean that it was in contradiction with the Constitution. And he gets that six vote big majority to it to be there with him.

SPEAKER_01 43:35

And it would be like a little bit absurd. Elon taught me about this concept in one of our podcasts, and it was mentioned in your book too, Molly, like the absurdity doctrine, which is always my reaction to some of these things. Like, well, that's actually just absurd. Like, you don't have to come up with the legal reasoning. It's just absurd that they would have made it required to be racist. Like, and I think that that was kind of the pragmatism that Alino had that I appreciated. Um but from a political perspective. Perspective on the VRA. Molly, I was curious what you thought because uh conservatives, Republicans are obviously celebrating. Um, but from a practical perspective, is there even time to do anything about this decision before the midterms?

SPEAKER_00 44:12

Okay, so this relates to something else I reported in my book about how Elena Kagan was pushing to delay the release of the Dobbs decision. There was reporting a couple weeks ago that she was also delaying this decision because if it could be pushed out late enough, then legislatures would not have time to redraw their unconstitutional maps. Um, I don't know if that reporting prompted her to get it out even, you know, because that this case was heard in October. So she had plenty of time to get it done, and it was her dissent. Um, but so it finally gets out there at the end of April. But you saw some states immediately say, okay, we're gonna deal with our unconstitutional maps like today. And so they're working on it very quickly. But I think the longer-term political consequences are less bad for Democrats than they think and less good for Republicans than they think. And all I mean by that is if you are drawing districts that are not racist, I think you're gonna have more competitive districts. And that is actually probably healthy for our Congress. Each party has these seats that, like, it doesn't matter who you run, how bad they are, they're just gonna win re-election. The more you have sensible districts that are based on like a community as opposed to your race or something like that, um, then you might have, you might see some going back and forth. And I actually think that's good for the country.

SPEAKER_02 45:37

So staying on this theme of elections and going about back to your book Rigged, I kind of liked the book Rigged because, and you know, fortunately I have tenure, so I can't get fired for saying I liked Molly Hemingway's book rigged because like when we talked about election integrity on our podcast a few um episodes ago, like your book, you're not making these crazy, unsupported claims about like, oh, X number of dead bodies voted or algorithms for the vote. It just shows more systematically how especially the left rigs various systems to systematically favor them politically, where in a healthy, competitive, neutral process, they would lose a lot more than they do, right? So one of the things is just that we talked about is election laws are necessary because fraud is hard to detect and they get rid of the election laws, you know, at the last minute. But not just that, you know, don't let an emergency go to waste. Like who I don't know who said that, but let's change all the laws to do the things that systematically make it harder, you know, to detect fraud, like mail-in voting and ballot harvesting and things like that, and that systematically also favored Democrats. So that's sort of an example. Um, and then another thing, um, I can't remember if you talked about it in in rigged, but it relates to the Murphy v. Louisiana case, I think that you talked about in Alito, which is the government pressuring Facebook, the censorship of the Hunter Biden laptop and things like that. And that's rigged. So maybe this is a way of my asking you generally, where do you think we are in terms of election integrity? And if you want to talk about the Murphy case that Alito dissented in and said, we should hear this case. There should be there's standing here. We should hear whether the federal government has browbeaten Twitter, you know, into uh helping Republican uh Democrats systematically. So what's your state sense of state of play here on all these issues?

SPEAKER_00 47:28

Right. Well, Ilan, thank you also for understanding what the book was about. And I am very pleased. I think I'm the only person to have written extensively about the problems in the 2020 election to have never even come close to getting sued over it. Like I made sure everything was very carefully reported. And also there were so many crazy things being said out there. Like people were like, this was the finest election we've ever seen, or Venezuela took over voting machine, you know, whatever. They were saying extreme things. And I just wanted to know what really happened, and I thought it was important. In some ways, it's just that Democrats have invested much more in election administration than Republicans have, and they are seeing the fruits of that. Uh, they continue to invest much more. A great example of that would be with the gerrymandering of the Virginia maps. You had many left-wing billionaires pour millions upon millions of dollars into changing the map to give Democrats, I think, an additional five seats. And Republicans, I think they didn't think they could win there, so they didn't really invest, and then they put money in too late. And it ended up being a very, very close vote in Virginia to gerrymander the maps that did pass. It's facing legal scrutiny now. So things are better in that the Republicans are understanding the importance of election administration and they're a little more informed about what Democrats are doing. But I think it's again, I don't think this is really a partisan issue per se. People need to trust elections. It's a huge, it's a pillar of self-governance, is that you trust the outcome of elections and that the that that outcome is communicated clearly and quickly. And right now you have the right mad at it, but you previously had Democrats mad at it. And so it's just something we all should care about so that we can live together peaceably. But yes, the I did get into the censorship thing, and I think those cases are interesting that how Alito handled them differently, first and foremost, in that he wasn't as willing to accept this idea that the government wasn't involved in censorship. He was totally proven correct with the statements from the Facebook executives and other people saying, yeah, the government made us censor places like the Federalist, where I'm editor-in-chief, and we just won a lawsuit against the State Department for their role in censoring the Federalists. And it the amount of censorship is nowhere near what the American people understand. It's horrific, and it's a huge violation of freedom of the press and freedom of speech. But also on the other case that was similar, which is that Florida and Texas had passed laws against some of this censorship, um, he was less willing to accept, you know, the what uh many of the justices said was, oh, this is just um an algorithm is just like an editorial board, and we wouldn't want to get involved in that. And he was like, well, shouldn't we kind of look into algorithms a little? Shouldn't we know just like um a little bit about how algorithms are done before we before we just blanket statements say, oh, it's just like the New York Times editorial board? And so I think that gets back to his practical nature and how he's unafraid to look at the facts of a case.

SPEAKER_02 50:36

One other thing, um uh, I guess two things. I know we're we've only got maybe about 10 more minutes with you. So I wanted to ask you about the TPS oral argument. I don't know if you caught wind of that. And then birthright citizenship, because you were there and we have you here. I want to ask you briefly about that. One lovely thing about Molly's book to our audience is when she shows that Justice Alito can be an assassin at oral argument, right? Uh, where he just he gets right to the to the nub of it and and cases collapse. So, like Citizens United was this famous example where it's like a video about Hillary Clinton and campaign finance limits on distribution of that. And he's like, would this allow the government to ban a book about Hillary Clinton before an election? And the Solicitor General is like, yes, and or like gasps, and like, you know, you you lost that case. And that's that's Alito. Um the Minnesota voter case, where like you couldn't have a political uh statement on your shirt near a polling place, and Alito's like, what about a rainbow flag? What about the text of the Second Amendment? But anyway, totally collapsed the case. Now we have the temporary protected status case, and the argument in favor that was just argued this week, right? The argument um that the lawyer is making on behalf of the Haitians is that, oh, this is discrimination on the basis of non-whiteness, you know, about race. And then Alito's like, look, there are a bunch of countries, including Syria, like, are Syrians white, non-white? Like, what's non-white? And then he goes through, like, are Greeks non-white, you know, or southern Italian, like, like, what does this even mean? Uh, what so what was your take on the TPS argument, Justice Leto's role, and where's that going, do you think?

SPEAKER_00 52:05

So many of the people that I interviewed had said that the two best justices on the court for oral argument are Justice Kagan and Justice Alito. And what they meant by that wasn't that they always had the pithiest lines, but more that they knew how to lead the argument in the direction that they want a case decided on, to strip away everything else and get people focused on the big underlying issue. And what we saw this week in the in the whether temporary protected status has to be permanent or not, was that it was vintage Alito at oral argument. He starts with the hypothetical that just seems so easy to answer, and then he ends up completely destroying the argument of the advocate before him. And, you know, asking about whiteness. And I loved how he kept on saying, too, I don't even like dividing people this way, but you do. So like, let's just go with it. And he gets the guy to just stumble all over himself, and people were literally laughing by the end of it. It was not a good sign for that, for that advocate.

SPEAKER_01 53:06

But also the tactic of trying to get your fellow justices on your side. I had never thought of it from that perspective as just a casual viewer of the court. Um, and once I read that in your book, that that is often what they're trying to do in oral arguments, really, is they're just trying to encourage the other justices to come along with them. I now hear that every time when they're doing the oral arguments, and I think that's such an interesting part that you don't find in uh other courts as much. That I just love reading about.

SPEAKER_02 53:35

And Molly, if I can jump in now to Birthright, a last uh question. You were there. I'll say that reading about Bostok in your book actually made me think that Alito is gonna vote the right way, the way I think is the right way, of course. And I just imagine you and Catherine think are the right way in the Birthright Citizenship case. You know, Bostok involved this kind of shocking case that Justice Gorsuch and the chief joined the liberals on, where what is discrimination on the basis of sex for the 1964 Civil Rights Act? And they said, well, sexual orientation and gender necessarily requires sex, right? And this was kind of a shock. And Alito, as his opinion, as you show, it's just like, look, like text has meaning in context. You have to look at speakers' intent. And nobody at the time in 1964 was thinking about this issue. And this goes kind of to a point that Catherine and I have talked about birthright citizenship, right? These are normatively laden issues, right? Like gender identity, sexual orientation, normatively laden. And the lawgiver, Congress, in the Bosta case, didn't tell us what they thought about this issue, neither today nor in 1964 when they weren't thinking about it. Isn't that kind of parallel to birthright citizenship? These are existential, normatively significant issues about birth tourism, this you know, huge inundation of illegal immigration that, you know, the the lawgiver today, the people, in a constitutional amendment, have never told us, you know, said what they think about it. And 150 years ago, they weren't thinking about it either. And so it's just kind of weird to let the accidental text where the framers weren't thinking about this 150 years ago kind of resolve this problem. Isn't that a bit parallel to Bostal? And do you think Alito's gonna rule the right way on this? What was your read being in the oral argument?

SPEAKER_00 55:21

I just have to say this is one of my favorite topics because certain people, yourself included, Elon, changed my mind on this topic. I was just one of those people who reflexively accepted that it was just everybody knows if you're born here, you're a citizen, and even if you move to China for the next 35 years, you get to come back and run for president. That's just the way it is. It's kind of weird, but that's just that's just what it is. It's in the Constitution. And the moment I started reading you and other people about it, I realized that my argument was not as solid as it seemed, that reflexive acceptance was just not there. One thing I love about this case is it's the first time it has ever come before the court. So we really don't know how any of them are going to rule because they've never dealt with this. I don't even just mean this court. I mean any Supreme Court. They've never dealt with birthplace citizenship. And so I really enjoyed those arguments. They were long, but you know, very interesting to hear what people had to say. And I think the originalist case that that the that birthplace citizenship is in in the Constitution, I think it's very solid. And we already talked there, these five self-identified originalist justices. I think we we've known enough from what Clarence Thomas has written about what he thinks about the 14th Amendment that he like, he wasn't even a vote to be gotten in the beginning. He cares so deeply about the why the 14th Amendment was written and what its limits are that I I just assume he's he's solid. To be honest, I don't actually know about the rest, but that no great country thing or the absurdity doctrine reminded me of this thing that some of Chief Justice John Roberts' former clerks had said. We we already talked about how he doesn't have a judicial philosophy, but they joke that if he had one, it would be no great country can do this. And it's just kind of a follow-on of the absurdity doctrine, perhaps it's like, well, you can't have a country where the leader of the Mexican cartel could run for president. Like you can't have a country where a million and a half Chinese people could affect the outcome of an election. Like no great country would do this. So I even I would even put John Roberts in there as a potential movable person. I don't have the highest hopes in this case, but I I unlike most people, I definitely think that we could get a ruling that surprises people. And here's here's one thing I would say about it though. I think that they might say, well, immigration law at the time that the that the 14th Amendment was passed was fairly open borders-y, and now it's not. And um this it this is it is true that there is no birthplace citizenship in the 14th Amendment, but our immigration law has changed over the years. We currently have a policy of allowing anyone born here to be considered a citizen, but it's just a policy, and that actually is true, right? It's just a policy, it's not in the Constitution. So if Congress wants to change that policy, they should. So it might seem like a technical loss, but it actually would be a win because of the ultimate issue of saying this does not say birthplace citizenship. And I call it birthplace citizenship because I feel like calling it birthright citizenship sort of begs the question. And I don't like to do that.

SPEAKER_02 58:36

That's a great point on begging the question. Well, we are out of time with Molly Hemingway. Um, thank you for joining us for the full hour today. What a fun conversation! Thank you so much, and good luck with the book sales. Not that you need it. Uh it sounds like you've been great.

SPEAKER_00 58:52

And I love your pod, so keep it up. It's great.