Justice Samuel Alito on the Supreme Court, recent Court decisions, and his education

hi I'm Bill Kristol welcome to conversations and it's a great honor to have today Justice Samuel Alito thank you for joining us justice oh my pleasure thanks for inviting me good to have you so how did you learn you were going to become the Supreme Court justice that must be a striking moment in one's life yeah it was I remember it exactly I was sitting at my kitchen table at home in New Jersey drinking a cup of coffee and your judge at this point on the other judge on the third circuit you know I had been there for for 15 years and the phone rang and it was a deputy counsel and what in the White House counsel's office bill Kelley who called me to say that President was seriously thinking about nominating me well first he told me that Harriet Miers who had been nominated for the seat was going to withdraw and that that was not public information at the time and then he said the president was seriously thinking about nominating me was I still interesting I said yes I was still interested so that was really the that wasn't the formal the formal offer and then Andy card who was the chief of staff at the time called my house when I was at the office my daughter answered the phone and so she took a message Andy card from the White House called took a little while for her to realize what this might be about and she consulted with my son and together they figured out that that what it was probably about so I spoke with him and then I think maybe the next day this happened over the course of probably three days Andy card had arranged for a time for it for the president to call me so the president called and he said I would like to nominate you for a seat on the Supreme Court and I said well thank you very much mr. president I'd be very honored and there was pause and he said well do you accept he wanted to I wanted to see all the contracts I said yes of course I accept and you would met the president before that I had yes he interviewed he interviewed me in July for the year for the opening yeah the sequence was that it was a complicated year for the Supreme Court it was coming and going complicated I have actually been interviewed the first time in 2001 I think that the Bush administration probably like all administration's these days began began to put together a list of potential nominees long before there was a vacancy because the the modern process of vetting nominees has become fairly elaborate so that is nominate I was interviewed in 2001 by by White House Counsel and then in the spring of 2005 before the end of the Supreme Court's term I guess the the White House began to think that there was a possibility that there would be a vacancy at the end of the term so then I was interviewed by the vice president and a number of other people and then at the end of the term justice O'Connor announced that she was going to retire and it was after that that the president interviewed me but at that point he nominated John Roberts for justice o'connor's seat and then when Chief Justice Rehnquist died later that summer he nominated John Roberts for the chief justice seat and nominated Harriet Miers for the Associate Justice seat but then as I said she she withdrew what are these interviews like to the degree you can discuss them it must be kind of strange or a sitting appellate court judge been there quite a while so the leave in there for interview sort of like that back into college something yeah it is it is it is unusual well the the the protocol is that those who are doing the interviews can never ask the nominee how the nominee would vote on any particular case or any particular issue but they ask a lot of probing questions about the potential nominees general approach to interpreting the Constitution interpreting the law the role of the courts they may ask about in the case of a sitting judge decisions that the judge has made in the past they're they're pretty pretty extensive the interview with the president was particularly unusual for me having been kind of a closer appellate judge for 15 years I was asked to come down to to Washington for an interview and it was on the interview was on a Saturday so I checked into a hotel downtown and they said that I was - I should go to a particular corner at a particular time in the morning and wait for a Chrysler 300 to pull up flash its headlights a couple of times and then I was to get in this car so I felt like like a spy but they wanted to make sure that the media didn't get any any word about people who were being interviewed so then we we went to the White House and as I said it was a Saturday morning and they they brought me up to the president's living quarters nobody first one night when I walked into the room a friend of one of the president's daughters was there and then he left and then so there's no like pre-brief you don't be first for to our level the staff to tell you what it's why they've been interviewed before but no not on this particular occasion and so then the friend left and a little Scottie came running in and then the next lander the president came in wearing kind of casual Saturday clothes so that was I was wearing a suit so that was the my interview with him did he ask anything striking or just do you think it was his mind already made up I mean I wonder how much he could learn it such an interview you know I I don't as far as I know his mind wasn't wasn't made up it was a very pleasant interview we talked about the same sort of things about the approach to approach to judging and then we finished up by talking about baseball I was about to say he's a baseball yeah you're a great Phillies fan we spoke a little bit about baseball we went over to see that the TV where he watched baseball games that's good that's good so now going backwards I mean you you had long been interested I think in the judiciary as a possible career how did that how did that happen with that just people will be curious I think obviously you went to law school but even before that I think you would thought a little bit about the law and judging yeah I had I think maybe I first really became interested in the Constitution when I was in high school and I was a debater I did a lot of debating which is kind of you know draws a lot of people into becoming lawyers but anyway one year the at the national there's there was in those days I think there may still be one national debate topic that everybody debated for the course of the whole year and one year it was about the exclusionary rule or some constitutional Criminal Procedure issue I think it was I think it was about the exclusionary rule and so really it made me start to think about the Constitution and what it meant you look in the Constitution there's nothing in the Constitution about the exclusionary rule the Fourth Amendment says no one reasonable searches or seizures but that's that's it so where did this come from is it legitimate if it is legitimate what legitimizes something that is not in the Constitution so I really began thinking about it at that time and then when I went to law school I'm sorry when I went to college I took some political science courses about the Constitution really some excellent courses and that's that sort of what got me started that was a Princeton yeah whose teacher was someone particular teaching uh well it was in kind of a transitional period the the professor I had to Charles Miller taught the main course but he was there for just a short time Walter Murphy I've been teach there was a famous he was on he was on leave during the year when I took it but then he became my senior thesis adviser he had become very interested in comparative constitutional law he had done a lot of work with the Irish Supreme Court and I was I had taken these courses and I was sort of looking for I must confess a summer boondoggle in in Europe and there was a scholarship to go to Europe to study something or other whatever you want it he had to propose something so I never met him I went to see him and I said I'd you know I'd like to write my thesis on the Italian Constitutional Court and go to Italy to do so researchers in December boondock he probably knew a fella he was probably used to the other students that way so anyway that that came about so I wasn't right so you have to Italy and work wrote on yes yeah well that's great that's great but your family didn't your father wasn't it wasn't a lawyer or there were lawyers no no there were no lawyers in background lawyers and a family both my parents originally were teachers and then my mother stayed a teacher for her whole life I think she she only left when the police came to her classroom when she reached the mandatory retirement age and you know physically removed her she loved it but my father left teaching just shortly after I was born and he became kind of the one-man New Jersey equivalent of the Congressional Research Service so he it's hard to believe in those days today all the state legislators I think have enormous staffs just like Congress but in those days the the New Jersey Legislature had prior to my father's starting they had two staff people period yeah they didn't have partisan staff they didn't have nonpartisan staff they had a build rafter and an accountant and then they they added my father as the researcher so he was their researcher and he did a lot of drafting of legislation and researching projects for it was a nonpartisan position so I became somewhat interest that was one of the other things that got me interested in law because he although he wasn't a lawyer he was working with legislation and I read somewhere that he personally had to do the redistricting of the legislative districts after I guess the Supreme Court insisted on one-man one-vote yeah he did he did I remember lying in bed listening to the this clanking of a mechanical I started to believe a mechanical adding machine juice he was downstairs and he was drawing maps to try to produce districts for the Senate and for the assembly that were as close as possible to equal in population just using you know using mechanical adding machine it's a little different today certification and so then you decided to go to law school and you went to Yale Law School yes very prestigious law school not Harvard of course someone has to go to Yale Law School that's good and why like why yeah law school oh well it was it's smaller and I I thought that that would be that would be better if it would be better for me to have a smaller school I had some friends from earlier classes who had gone to Harvard and I went up and visited them and they were pretty miserable and they were they were living in you know you'll know the name of this building I don't I don't remember it but there was a dorm horrible little rooms everybody packed together it went to the law school yeah I mean I didn't go to close when I remember visiting friends at the law school yeah it wasn't the most lavish living kicked living quarters so I thought well Yale has to be better it's smaller didn't really have didn't have the same grading system as Harvard Harvard has now thrown in the towel and they have Harvard Law School I think has now essentially the same grading non grading system as Yale but in those days it wasn't true so at Yale our first term courses were credit fail and then after that I was honors pass low pass fail I don't know what you would have had to do to get either a low pass or or a fail it was almost impossible so basically you could go through with doing minimal work and you have all passes and I would look reasonably respectable and I've read that you had read some works of the great Yale professor Alex piccolo Alexander Bickel before you went to Yale Law School's I did yeah the book that I the first book of his that I read was called the Supreme Court in the idea of progress which came out while I was in college and as I said I had been thinking about this issue of what would make a constitutional decision legitimate if it wasn't based very clearly on the text of the Constitution or something else that was fixed the orthodoxy at that time was that aside from a few questions that were settled by the text judges and justices were really not finding the law in any sense there was not an objective law out there for them to find the this was still they were the orthodoxy was still very much under the spell of the the legal realists who said that what judges are doing is really implementing their own policy preferences although they dress it up in fancy language so if you start with a premise like that what would make a decision legitimate and that was what bikal had begun to address earlier but so he began as they really as a defender of the Warren Court which was a very unthreat achill Court they I think they reflected the personality of Chief Justice Warren who was a practical kind of Republican progressive reformer so he had a very clear idea of what good policy was and he used the power of the judiciary to implement that policy but neither he I think nor most of the other justices who were with him in the big Warren Court decisions with the exception of a frankfurter who became a dissenter but for the most part they did not seem to worry very much about the theoretical justification for what they were doing so Bickle began as a to provide a theoretical justification for what they were doing at least in the early years of the war court but by the time the Supreme Court in the idea of progress came out in the late 1960s Bickle had become more and more doubtful about what the Loren court was doing particularly in the later years and you read his book books as an undergraduate I read his yeah I read his book I was very impressed by it and I was looking forward to taking some courses from him when I went to law school but unfortunately he became ill almost immediately after I within within the year when I started at Yale so I never did take a course from him my constitutional law course was taught by someone you may whose name you may remember most people today would not remember Charles Wright I do remember the greening of America right huge spokesman for the new left yeah we hadn't always but right he had been a much more normal so to speak moderate liberal yeah he was a law professor yes exactly he was a very influential kind of avant-garde liberal law professor through most of the 1960s he wrote a law review article called the new property which was quite influential and was seen as providing the groundwork for a line of Supreme Court cases that began but was terminated largely after the end of the Warren Court which his thesis was that property rights traditional property rights are things benefits that are given to people by the state by legislation that is enacted by a state or recognized under the common law and the the modern a modern equivalent of that was government benefits so something like Social Security or other government benefits could be seen as a form of new property welfare right exactly so then the were cases about the due process rights to the termination or denial of welfare that we're seen as coming from his scholarship or were related to his scholarship but by the time he taught me he was experiencing I think some personal turmoil and was the most bizarre course during the first term at Yale Law School most of the courses were big traditional law school classes 50 or so students oh and you would have three of those the first year courses were contracts torts Civil Procedure and constitutional law so everybody would have a big class for three of those subjects but for one of them you would have a small class of maybe 15 students and that was supposed to teach you the subject but also teach you legal writing was a combination of the two so I had him for constitutional law and I kept notes of any Supreme Court case or any other case that was even mentioned during the course of the term and at the end of the term that was exactly one that had been mentioned not really a deep dive into the legal reasoning of the of the court there well he began by saying that his thesis was there were no livable lives to be lived in the law that was his phrase so he went around the room and he would say why did you come to law school and in those days nobody would say I came to law school because I want to become a partner at a Wall Street firm and make a million dollars so everyone would say I came to law school because I think it's a way of achieving social reform or helping Society or something like that and then he would engage in a long debate with each student to try to prove that this was not a good reason for going to law school basically he was telling us you really shouldn't be here and this went on for weeks and then he went on to two other subjects some that was my my common law course the professor who taught the big section that term unconstitutional law was somebody who wasn't that well known at the time Robert Bork no and I I went too soon as I saw I had been assigned to Charlie Rice's class I I had read the greening of America and I really was not interested in being in this class I went to the assistant dean and I said can't you possibly switch me so I can be have regular constitutional law class never in the history of Yale Law School's anybody ever switched a class so suppose we progressives this was to change the system even s was bound by history in that way I guess they were still I was consigned to this to this experience that was bizarre and he told us that he could never tell when he would have to go to San Francisco but he always had a ticket to San Francisco in his desk and at some point during the term it was possible that there would be a note on the bulletin board that he had gone to San Francisco in the course would then be over and I came back to school after Thanksgiving I looked at the bulletin board and there was a note I've gone to San Francisco that's the end of classes that was the end of the classes so the lesson is if you want to become a Supreme Court justice to take take a totally worthless kind of law course your first term at law school I guess though I'm self-taught a lot of Bittle say this explains a lot that's good right I'm curious I didn't really intend to ask about this but I'm what was a like at Yale Law School in terms I mean it's one of the ABAB for teaching one section charles rice and other in terms of diversity of thought I'm obviously I'm sure the faculty and student body were mostly maybe overwhelmingly liberal but was it tolerant did it foster I mean it was a friendly to dissenting views I mean how does that compare with law schools today I'm just curious it wasn't bad I think the students were overwhelmingly liberal but there were there were a few of us conservatives kind of hiding Clarence Thomas was there at the time John Bolton was there but it wasn't the classes in those days this was true in colleges as was in law school we're not I think highly politicized much less so than today do you take a law school today even they are I thought maybe law school had kept up the tradition of you know sort of arguing both sides of the case or of the law I think more than maybe the undergraduate I think that's definitely true it's much better but that yeah there's still there is a kind of a you know an orthodoxy that all the students are I think kind of assumed that that's what they're supposed to think I took I took one course of law school when I was in grad school because constitutional law was one of my sort of minor fields for the exams I was John Hart Eli said I was named on something who was a very distinguished yes I didn't realize at the time I was taking the course what did I know that he was so distinguished I guess maybe was about to become so distinguished you law professor very good course and he bought this was ethics 75 maybe and he volunteered in this course something I think he had neither written at the time wrote so soon after that roe v-- wade had no basis and write the Constitution or some formulation but being fairly well known for any was a liberal and I think pro-abortion right as far as it went as a legislative matter and I do remember at that point in the class that I really remember thinking this that there was kind of a gasp and a certain amount of oh my god how can a professor say this but I was sort of struck by the willingness to engage and genuine debate yeah I think there's much more that in law school than in in the other subjects because but the practice of law is adversarial so people are and lawyers understand law students understand that as lawyers they will be in the position of having to argue a particular point and there will be an argument on the other side and they may have to make the argument on the other side at another point so there is because I think of the the adversarial system of law there is more of a preservation of the idea of actually debating issues then is probably true in in the humanities and the social sciences today once it's good that fifty vanities for good for good for law school to some degree I may ask you one more just a biographical question I think most members you serve in the in Washington and in the Justice Department and a couple of capacities what for most of the Reagan administration or almost all uh yeah for most of it I started in the Solicitor General's Office in 1981 and then I went to the office of legal counsel in 1985 and then in 1987 I went back to New Jersey his US attorney I'm curious about that it seems to me that's the less I think most of your colleagues on the court served in the Justice Department sometime rather I suspect but being a prosecutor which you were first several stretches against legal career what was that like do you recommend it to young people as a both sake of the country but it's a learning experience how did it shape you and I do it was a wonderful experience I was an assistant US attorney right after I had a clerkship on the third get the court that I eventually joined after that I went across the street to the US Attorney's Office and I was able to go to court immediately I argued I mostly did a pillow work I argued I don't know a couple of dozen cases in the Third Circuit during that time so there's no what it's very very hard for young attorneys in private practice to have any experience in court and the US Attorney's Office is one of the few places anymore where you can actually go to court particularly for people who would like to try cases really the only way to get a lot of trial experience anymore is either to be a prosecutor at the federal or state level or or a public defender did you enjoy are you into cases in court I suppose I did the research and all the other stuff that I liked I liked I liked all of it I liked arguing cases what's that never as a non-lawyer what is that like it looks challenging to me too intimidating but what it is it is very it is very challenging it's a very unusual format and when non lawyers or lawyers from other countries see an appellate argument in the United States they are somewhat shocked by it we had a group of judges from the European Court of Human Rights come to have a little conference in Washington a couple of years ago and before the conference they sat in on one of our morning arguments sessions at lunch I was sitting next to one of the justices and she was being very diplomatic and polite but basically what she was saying was that she was shocked by the way the argument was conducted she's the judges are interrupting the lawyers they're interrupting each other they are saying things that reveal what they're thinking about the case because the the standard practice on the continent of Europe I think is for the judges for appellate judges to sit there and listen and that's that they in some courts I think they never ask questions now they may ask a few questions but it's nothing like argument here so if you're arguing of course it varies from court to court but you have to do two things you have to keep in mind what you want to say so you have to have in mind two the basic points you want to get across you can't show up thinking that you're going to deliver a memorized beautiful speech because that will not happen and you'll be lost so since you get interrupted so maybe you'll come in with the idea that you have three points that you want to make and you have to on some courts that you may have a period of time when there aren't any questions and so you need to be prepared to make the points that you want to make but then really the most important part of the argument is answering the questions that are asked by the bench because those are presumably things that the judges or the justices are really interested in when you're talking and they're not saying anything you really don't know whether they're interested in what you're saying but if they ask you a question presumably they're interested in that in that subject so you need to be prepared to to answer that question and then work your way back into the major points that you want to make so if you come in and you think I want to make points a B and C and you maybe hit two minutes into the argument with a series of questions about point C you need to answer that and then work your way back and if you're the really good advocates will read the court they may get a sense of an argument that isn't going to work that they have an idea exactly where they want to go and they may have a preferred route to get to the endpoint that they desire but they may see that there's sort of a there's an accident here or there's there's a traffic jam here so there's another route maybe that you can get to to where you want to go or maybe you're not going to get all the way to the destination that you really want but you can get to something that's bet that's better than alternatives and do the I was on the third circuit I mean we've all by now I think you can listen to the Supreme Court arguments we all have asset care about it when as a sense of how that works but at the appellate the circuit level there are three typical case would be a three-judge panel I suppose yes and how long are these oral arguments oh the Supreme Court the more time they're much more informal and I think most of the courts of appeals are that way we our standard length was 15 minutes but as opposed to 15 minutes aside as opposed to 30 on the Supreme Court but it wasn't rigid at all so it could go well you had more questions yeah when I was presiding which I was generally toward the end of my time on the third circuit when we came to the end of the 15 minutes I would always say do you have any more questions do you have any more questions and we could go on as long as necessary I had a colleague on the third circuit who just loved rural argument a wonderful judge named Eddie Becker and when the red light would go on the lawyers would get ready to sit down and he would say oh ignore the red light you're on our time now and he could go on for another hour or two hours if there were questions that he wanted asked so it was very informal there's not a big audience of observers at the start of the typical argument mourning in the Third Circuit the courtroom might be fairly full of people but by the last case there were generally two people there no no so everybody there was a lawyer or maybe occasionally a client with a lawyer involved in one of the two cases but there was not an audience of people who were just there because they were interested and either at the appellate level of the court level to the oral arguments make much difference they they can make a difference they probably have gotten these massive briefs that are thoroughly research yeah we reflect the work of tons and dozens of lawyers and prestigious law firms and so you sort of what from the outside my wonders help me know could being adept and a half an hour argument could that really change or justices might or as mine compared to the the written material well that's exactly right we do a lot of reading and a lot of thinking about the cases before we retake the bench so necessarily I think most of the time we have a pretty strong idea about how the case should be decided but sometimes things will be said during the argument that will cause you to rethink your position it's more unlikely that if you will go from thinking the case should be affirmed to reversed to making some other sort of lesser modification and in the position that you were contemplating the oral argument on Supreme Court is usually the first time when any of us gets much of an idea about what the other justices are thinking so you can tell from their questions what they're thinking and you may want to modify your position in light of what some of your colleagues have said on the court of appeals the argument probably changes the outcome causes a dramatic change in the outcome more frequently as a result of bad lawyering on the Supreme Court the average level is very high on the courts of appeals it's it varies a lot the best is as good as we get on the Supreme Court but the worst is sometimes really bad so now I remember an argument where a lawyer showed up and said well I have to inform you that my client has died let's kind of makes a difference but he hadn't brought that to our attention or my client is in bankruptcy and so if a party who is sued is in bankruptcy then all the litigation has to stop or the lawyer will tell you something that makes you realize that you really don't have jurisdiction over the case doesn't happen at the Supreme Court level yeah it doesn't I'm struck that you say that when you hear the oral arguments that sometimes the first indication you have of your colleagues views of on the case in question I mean talk about that so how does it work and what do you talk to your colleagues informally formally how do you how do you go after that how does it work as an institution in the typical case I will not talk to any of my colleagues about the case before we hear the argument there's no rule against doing it but it's just generally not done as a matter of tradition or practice or efficiency but usually I will prepare for the argument I'll read the briefs and everything else that's relevant and I'll talk about the case sometimes pretty extensively with my law clerks and then we'll go into the oral argument and I'll get a sense of where my colleagues are on the case my the on the Supreme Court the law clerks are very free to talk to each other so my law clerks usually have a sense of what the law clerks and the other chambers are thinking about the case but that's not necessarily the same thing as what the justices are thinking about the case so a higher percentage of one's time on the stream court is spent studying reading asking your lower courts to research some further things or exactly I mean exactly usually when there are editorials or articles or speeches in Congress about televising Supreme Court arguments what is said is that the people have a right to see the court at work and really if the people if if the public saw us at work what they would see for the most part is a Justice sitting at a desk or in a chair reading a brief or typing on a word processor that's most of the work that the oral argument is really a small part of it but in terms of the decisions you do vote so how does that work so there's the oral argument on right Tuesday or something like that okay well let's if let's say the argument is on Tuesday then after the argument I will talk to my law clerks and we'll go through the things that were said during the argument think about any adjustments in what we had discussed earlier that might be appropriate in light of what was said either by lawyers or comments that were made by the other justices then on Friday we will have our weekly conference and we'll talk about and vote on the cases that we heard that week the procedure at the conference is pretty formal the Chief Justice will start and he'll say okay the first case is Jones versus Smith it's this is what it's about and this is what I think we should do I think we should affirm I think we should reverse the chief will actually usually volunteer his opinion yes first yes we go in descending order of seniority he won't speak for a long time usually you know three minutes maybe senior even though he's not he's and as long as yeah yeah and he is considered to have a greatest seniority and then the next most the most senior associate justice Justice Scalia would speak and then Justice Kennedy and will go all around the table doing the same thing we have a rule that nobody can speak a second time until everybody has spoken once so we make the complete circuit and set in a certain order kind of the same you have assigned seats I'm afraid it's kind of formal everything is as it should be yes yeah everything based on seniority seats are based on seniority and so once you've we've gone around like that and that's just the night of you there's no clerks just a night of us no no clerks so we have to take we all take notes and it's pretty important to take good notes particularly if you're going to be assigned to the opinion because you need to try to remember exactly what at least four of your colleagues think about the case if you draft a and you're circulating you want at least four justices to agree with you or else it's not going to be the opinion of the court so it's it's important to have and either have a good memory of what was said or or take the notes but in any event we go around the table and once we've made the complete circuit usually we'll know how the case is going to be decided and the basic rationale of the case sometimes after we've gone around well the worst case in terms of efficiency is where there isn't a majority for any judgment there might be three votes to affirm three votes to vacate three votes to reverse so then we have to try to see if there is some position there's some judgment that at least five could agree on and that's pretty infrequent that happens pretty infrequently but more frequently once you've gone around it's not clear that there is a a rationale that five will agree on there may be let's say six want to affirm but if we want to do it on one ground three want to do it on another ground so again you have to try to find sort of the least common denominator something that five would would agree on and then sometimes if particularly if it's a more controversial case someone may want to answer something that was said by someone who spoke later so there may be a little bit of a back-and-forth debate but it's not an open-ended discussion and it doesn't go on for a very extended period an hour of back-and-forth Eugene oh and some other justice about arguing about it now for better or for worse that's that's how it's done it changes it's changed over time my understanding is that when when William Rehnquist was the chief justice even less was said it was he was a very efficient person apparently from all accounts I didn't serve when he was chief but apparently there was not very much discussion as they went around the table and at times in the past I think there was an extended discussion there in I read a book that said that when Felix Frankfurter was on the court he would when I came his time to speak he would get up and he would take books down from the shelf and he would start reading passages and he would go on and he had been a former professor at Harvard Law School blammo Douglas who was on the court at the time who had been a professor at Yale Law School would did not like frankfurter they'd just clash even though they were both FDR appointees and and Douglas said sometimes he would he would threaten to leave the room because he didn't want to listen to this Douglass said that frankfurter always speaks for 15 minutes because that was the length of the time of class at the high school so that's what he's used to so it's changed but somewhere in kind of an intermediate position right now so you cast these votes and they're not binding you could change your mind as I continued to research and think and I read opinions but based on these votes to Chief Justice assigns the opinions that have worked yes the chief the senior justice in the majority will assign opinion so if the chief is in the majority he will assign the opinions and he will do that or the opinions will be assigned at the end of each two-week argument session so that doesn't happen right away on Friday that's it not unless that's the the Friday at the end of the two-week session so at the end of two weeks usually we will have heard 12 cases and Friday afternoon an opinion assignment list will come around so other the 12th we will almost always we will each get at least one and then three justices will get two so at the end of the year basically we've all received about the same number of opinions all right we court Watchers or I'm not really one but by the court Watchers I read are always reading the entrance to Cecily no still have two opinions likely outstanding or whatever right but so the majority opinion is assigned while you have the chief over by the ranking most senior person likely to be in the majority and on the dissenting side is there any assignment or do people just decide to to dissent it uh I mean this is that yes both things are true the let's say it's five to four then the senior justice in the minority may assign a dissent for the majority or ask if so that senior justice might ask me would you like to write the dissent would you write the dissent in this case and then I would write the dissent but we always can we can always write a concurring opinion or dissenting opinion if we want to but only the majority opinion is really assigned and that so yes formal way exactly yes see that's interesting interesting and then you people get to work writing yeah so then if it's assigned to me I will begin writing working with my law clerk and I'll do a lot of work on this before I circulate it to the court once I've drafted something again keeping in in mind both what I would like to say and what I think I can get a majority for and sometimes you need to think about whether you want to aim just for five or do you want to write something that will get six or seven or eight or nine there's a little bit flexibility there but once I've drafted something that I'm satisfied with then I will circulate it this is what everyone does will circulate it to all the justices and what I hope forwarding those who says they would be in the likely be in the minor that's exactly all the communications about cases almost all of them are done in writing and everything is circulated to the full conference to all the justices no matter which side they're on it's not a 100% rule but that's the general rule and I what I hope is that I will very quickly receive eight memos saying this is perfect you know don't change a word right and it doesn't always work out that way do they let you know I mean necessarily if they're going to still concur in the judgment but I'm going to write a concurring opinion that in which I explain that I don't agree with part three of your opinion or yes so that's that's all explained I mean that's all usually what I will receive is a memo indicating whether that justice is going to join the opinion and I may get a memo that says I will join if you make this change in this change in this change or I will I join your opinion but I suggest that you make certain changes so that would be leaving it to the discretion of the author or I may get a memo saying in accordance with my vote at conference I'm going to dissent on the Friday conference one of the things we do is to do an inventory of the cases where the opinions are circulating so if I had circulated an opinion we'll go through the list and sometimes at that point someone will say I'm waiting I was in the majority of conference but I on the vote but I'm going to wait and see what the dissent says so sometimes that will happen and occasionally a decision will flip you know maybe once a term or so something that was it was five to four one way ends up being five to four the other way someone and was in the majority reconsiders after reading the dissent thinking about the case and so it's not the most efficient thing but it can happen and the votes aren't final so to speak until the actual know the ya know the votes are not final until we go out on the bench to announce is a decision so in theory on a let's say on a Monday morning a certain case is ready to be announced someone in the majority could could say something came to me over the weekend and I realized my position is wrong and I'm switching my position and that's going to switch the decision that can't I don't hasn't happened that way during my time but it could but it could happen the week before people could writing to examine exactly you know it's an interesting combination I suppose thinking about it just I really haven't thought about it this way before stepping back of sort of demarking on the one had reasoning I mean these disposed to be recent opinions and so that's why all the work and all the you know legal the legal reasoning and research but it is also in a sense of democratic procedure getting majority of nine so I suppose it's an interesting way that when you think about it it's a process that mixes both you know pure reason you might say legal reasoning and certain amount of democracy and you know that justice brennan is supposed to have said to his law clerks when they began what's the most important thing for supreme court justice to know and maybe they didn't you know there would be a pause and he would say this is the most important thing for a Supreme Court justice to know five you need to have you need to get the five to do anything and to get to five or six or seven if you want to get more I assume people don't they're gonna make an argument they don't think it's a correct argument I suppose it's more a matter of not pushing as far as you might want to push in terms of overturning something or or elaborating on it the implications of a certain argument is that right I mean it's yeah exactly it's different from what I imagined takes place and consider to be proper in a legislative body where you could someone could vote for something that that person doesn't really believe in in exchange for getting a vote on something else I don't know that that's considered to be unethical behavior of what I think is more important by a legislator but on a court you can't you know you that that's improper in and I don't know of any instance of where where it's been done so you can't really you can't trade your vote and I don't think any of us would actually sign on to something that we don't believe in but we are often required to sign on to something that is not exactly what we would prefer and it becomes a hard one of the hardest things for an appellate judge it was hard when I started it's still hard sometimes is to figure out how far you should Bend before you say I can't go any further so that someone circulates the majority opinion and it's it's not what you would have written and you really don't like certain aspects of it maybe you don't like the language how far can you go for the purpose of making a majority or for the purpose of just not writing another meaningless separate opinion how far can you go before you have to say no I can't I can't go any further I suppose on the other side as a matter of sort of comedy it's not good form to sort of just write separate or concurring or what if I could partially you know agreeing in the judgment but dissenting you disagreeing with certain aspects to do that in some sort of pedantic way where you know I don't like to follow two paragraphs in this section and the following yeah part of this section of this that's important I suppose right yeah like it's not like it's you know law school or something where you know a professor can say well I would agree I agree with arguments you know 1 3 4 6 8 and part of 9 I'm gonna explain now why the others are wrong I don't think that the court doesn't want know it supposed to be that no exactly it's a hard line as a former consumer of Supreme Court opinions when I was on the court of appeals what I wanted and what all the lower court judges want what all the what parties want lawyers want is a pretty clear rule so it's nice to have a majority opinion it's difficult when you have to put together opinions and try to figure out what the whole thing is but on the other hand sometimes I might get the draft of a majority opinion and I agree with the bottom line or it could be a dissent I agree with with the bottom line and the basic argument but there may be paragraphs that are based on past decisions from which I've dissented and so it's kind of hard to you know I accept the fact that this case was decided and it's binding on me but I still think I was right in that case and it's hard to sign on to something that is enthusiastic about a position that I thought was incorrect so there there are a lot of very hard lines to draw do you I was able to ask you about your colleagues but in terms of you've obviously studied I'm probably read a huge percentage of the opinions of almost all your predecessors on the court how you guess who do you admire the most I'm who do you pretty sure well there are a lot that I usually should we go back to read if we want to really see what being a Supreme Court justice should be how it could be done well there there are a lot that I I admire for different things and there's no one single justice I would say I want to model myself on John Marshall it would be presumptuous to do it with with some and the issues are different the the way the court operates over time has changed the style of writing opinions has changed a lot I might uh Chief Justice Rehnquist's very much I thought that he was he achieved a lot he was during his time during his time on the court he started out dissenting on us often by himself on certain issues often about federalism issues and by the time he became chief justice he had assembled a majority in favor of some of his of his positions I I admired him jonna the second justice Harlan was very scholarly person I admire his work justice Jackson was a very great it was a good writer a very memorable writer the last justice who didn't graduate from law school right I guess he still what is a call to study the Prentice sort of yeah yeah yeah yeah for the bar yeah yeah that isn't that it's interesting and if someone problems just thinking about this navitor some publisher came to you and said you know you could edit so selected opinions of one of your predecessors people should read I need someone as you say it's hard if I don't go all the way back because the issues are so different maybe but in terms of 20th century let's say justices that's that's hard and it's really how I worked well me well maybe the ones that I mentioned I think our lives would be this would be some that I'd mentioned the first justice Highland is a very interesting figure and an admirable figure in a lot of ways he was the only dissenter in Plessy versus Ferguson very old-fashioned man and maybe you know in some in some good ways one of his he was kind of derided by his more sophisticated colleagues Holmes said he was the last of the tobacco chilling justices which I think was true he statue to back on the bench believe it or not and justice brewer said that Harlan goes to sleep each night with one hand on the Constitution and one hand on the Bible and he sleeps the sweet sleep of the just and he said that as a as a kind of created a critical comment but maybe that's not such a bad thing I mean I remember this from years ago I haven't looked at the stuff unfortunately but when I talked a couple for science courses on Kudlow the dissent in Plessy is really a powerful and moving I would say document he was and he came from a slave owning family from a southern background their majority opinion in the case was written by Henry Brown who was not very well remembered but I believe that he has the distinction of being the only Supreme Court justice who attended both Harvard and Yale Law School's yeah and he was and you know building upholding so maybe their problem that does say a lot I think there's so many things that one could ask about your in terms of your work on the court and so so much what's so interesting but let me ask about the rather unusually I think and I think the 2010 term 2011 you dissented in to free speech cases at and white wrote about it for quickly standard and I think people noticed it because there's always been is sort of simple bited you know political divisions on the court and it's true some of the time the divisions or six three or five four and you sort of could guess some of the time who is going to be with whom and suddenly you were dissenting in two different I think eight to one decisions in which the opinions were written by with Justice Scalia I think in one case and and the chief justices and the other other yes alittle you're often allied yeah so talk about those two those two cases and well the first thoughts on free space I think there you have a distinctive ethic view it very interesting when I think of free speech political speech so forth the first one was a case called United States versus Stephens and it was it involved the constitutionality of a statute that prohibited the creation or circulation of depictions of animal cruelty it was enacted by Congress to stamp out something called crush videos which are horrible things they are videos of a person presumably a woman wearing high-heeled shoes stamping a little animal to death a hamster or sometimes a kitten or something like that and there's apparently there was maybe there still is a market for this sort of thing so all you would see on the video was the foot and the animal being the animal being crushed to death and it's virtually impossible to find out who was doing this the act the physical activity could be made illegal no one questions that that you can have a law against animal cruelty but can you have can you have a law that prohibits the creation of these videos without which the animal cruel would not take place that was the theory of it and the court said no as a federal federal standards yes the statute was over broad because there were some you could think of examples of things that would fall within the literal terms of this statute that were quite removed from these crushed videos the Chief Justice wrote the opinion in the case and he had the example of someone shooting a deer out of season in in a particular state that would be an illegal activity and so if you had a video of this person the hunter shooting this deer out of season or cockfighting in Puerto Rico where where it's legal in any event I I dissented in there that was not the instance no this actual case was appealed the case itself okay the case itself was actually they were videos of dog fights and dogs tearing each other apart so the court held that that was unconstitutional and I dissented and the other one was Snyder versus Phelps which had to do with protests at the funerals of soldiers who were killed mostly killed in in Iraq or Afghanistan there was a group that a small group that felt very strongly about two things they were against homosexuality and they were against the Catholic Church and so they and somehow made the connection between homosexuality and the US military and so they would look in the papers presumably for the funeral of the soldier and they would show up and they would protest outside of the the church or wherever the funeral was being held and they would in this particular case that the soldier was being buried in Maryland and they showed up in this small town in Maryland and they had placards that said horrible things about him personally and it was very distressing to the family members who were in attendance so they were sued under a very well-established tort that goes back to the 19th century the intentional infliction of emotional love severe emotional distress and I thought that this tort constituted a reasonable exception to the First Amendment but my colleagues disagreed about them so explain the your your and you wrote powerful dissents and those two in my opinion in those two cases what about the obvious sort of simple argument well look you it's a slippery slope if you can't curtail speech it's yeah I mean that's kind of the argument that majority made one way or the other I would say well I think some members of the majority this is not based on inside information this is what I I get from reading the opinion I I I think that there are those who would support the majority decision in both those cases for exactly that reason so if we we if we say even in these outrageous situations we will we are we will not tolerate any abridgement of freedom of speech then when something comes along that I would regard and I think our cases would regard as really being at the core of the free speech protection that these decisions provide a guarantee or they provide a wall of protection against a bad decision in those areas if I really believe that to be the case I might think that it was a appropriate trade-off I don't think that's the case I think that that that judges who are inclined to make a bad decision an anti free-speech decision in a case involving core political speech will find a way of getting around these little these these these little cases so what I think has been going on in in those two cases and another one where I was in dissent this time not by myself in the United States versus alpha which had to do with the constitutionality of a statute passed by Congress called The Stolen Valor Act what I think has been going when the Stolen Valor Act prohibited a false claim of having received a military medal so this which was happening a lot that was happening a lot people were making up you know claiming to have won the Congressional Medal of Honor that's what this mr. Alvarez did he said well I won the Congressional Medal of Honor well he hadn't done no such thing and the Court struck down that statute six to three but I think what those cases involve a diversion I think of attention from the Corps protect from what is most important about the guarantee of freedom of speech whether I think freedom of speech protects serves many purposes but I believe and I think the Court has said that at the core whatever other purposes it may serve it is vitally important for democratic self-government if people cannot debate public issues if they cannot debate the relative merits of political candidates then democracy is basically impossible so I think that is the core of the protection these cases involving depictions of animal videos had video depictions of animal cruelty the protests at military funerals claimed falsely claiming to have won the Congressional Medal of Honor don't involve anything like that and if we lose focus on what is at the core of the free speech protection by concentrating on these peripheral issues I think there's a real danger that our free speech cases will go off in a bad direction on in the cases that we've had that I think involve core free speech the example that I the chief example I would give from my time on the court is the Citizens United case the court has now that came out five to four protecting the right to freedom of speech but it was five to four and it has it remains very controversial my former colleague John Paul Stevens has written a book recommending a number of constitutional amendments to correct the decisions he really disagreed with on during his time on the court and that's one of them he wants an amendment of the First Amendment which is pretty remarkable to overrule the decision in Citizens United Citizens United I think is core political speech it is a video about a candidate for the presidency of the United States if that's not protected by First Amendment free speech by the First Amendment free speech guarantee I don't know what I don't know what is so on these on things that are at the core the court has been shaky ur then it has been on these things that are at the periphery so the argument the protecting the periphery helps protect the core doesn't seem to I don't think Oh No I don't think I don't think it works and you also make the argument as I recall in at least one or two of those three dissents you make more and if that's a positive argument also for the virtues of for the right and ability of a community to draw certain boundaries around a kind of civility or civilized behavior almost in the case of the soldiers funeral rolls are well they all the relative animal cruelty all three of them lying you know those are all things that you would a community would have a reasonable interest in discouraging to say the least I think that's true and I think that's appropriate in cases that don't involve political speech I would not make the same argument in a case involving in the case involving political speech I thought all of them were cabined by specific rules the very reasonable rules so in the animal cruelty case I thought that was very similar to the rash I thought the rationale there should be very similar to the rationale against child pornography which is that you can't produce child pornography without abusing a child and by stamping out child pornography or trying to stamp out child pornography you are attacking the the underlying abuse same thing with these crush videos you couldn't stamp them out without getting with without preventing the creation of the and the circulation of the of the videos but I wouldn't make that kind of an argument I think that kind of an argument is a dangerous argument when you're talking about political speech and in in if you compare our law for example to the law in democratic countries that believe in human rights in Europe they go much further they are more restrictive of of speech including including political speech that you have their laws against hate speech their laws on defamation of a public figure make it much easier for people to sue for a public figure to sue someone who public figure thinks the public official thinks has said something false we get an article about this and living P senator the the laws against HP seem just step back and look at the actual speech that's going on in these countries that have had these laws not to have been very effective and if anything perhaps to that a slightly you know contrary it effective I don't know somehow oh man you know romanticizing this the dairy you know anti-semitic speech or whatever that's probably true event certainly they have they have laws against against hate speech include a Holocaust denial much and yet you see what's happening with anti-semitism in Europe so it doesn't seem to be very effective we're speaking shortly after the end of the 2014-15 term and it closed for the dramatic obergefell case on same-sex marriage and marriage equality and you dissent it along with three other justices I think you each wrote your own dissents and yours is a powerful dissent which I recommend everyone to read in full but it does close with this strong I could say bakkali it reminded me of Alexander Bickel he's dangerous branch a concern that you expressed about almost legitimacy of the court in light of this decision you say this is people of sincere and wishing in the vision of Liberty you're the majority was sincere and the vision of Liberty had held and expressed in this case but this sincerity is cause for concern not comfort what it evidences is the deep and perhaps irremediable corruption of our legal cultures conception of constitutional interpretation that's a strong statement and you obviously thought a lot before writing it and just explain how explain the corruption and explain what we citizen should think about that well the decision was based on really one word in the Fourteenth Amendment the Due Process Clause of the Fourteenth Amendment prohibits the deprivation of life liberty or property without due process of law so this was all based on Liberty and on a substantive protection of Liberty not a procedural protection which is what you might think the Due Process Clause was about but substantively the Constitution protects certain liberties the court held and the right to same-sex marriage is one of those liberties the idea of substantive due process has been very controversial throughout the courts history it was a prominent feature in a number of pre New Deal Supreme Court decisions where it was used to protect property rights and the New Deal constitutional revolution he tried to either kill off substantive due process completely or to relegate it to a very very minor role but it has experienced a revival in more recent years not in the area of property rights but in the area of some non property individual rights including including same-sex marriage so the jurisprudential question is what limits the definition of how do we determine what Liberty in the Fourteenth Amendment means Liberty means different things to different people that for libertarians for classical liberals it does include the protection of economic rights and property rights for progressive Social Democrats it includes the protection a right Liberty means the you know freedom from want etc etc government benefits and there are many other conceptions the courts conception I said in this opinion and I believe to be true is sort of a is a very postmodern idea it's the it's the freedom to define that your understanding of the meaning of life you are it's the right to free to self-expression so if all of this is on the table how oh where are the the legal limits on it if the libertarian is appointed to the Supreme Court is it then proper for the libertarian to say well III think that there is a right to work for less than the minimum wage I think there's a right to work as many hours as as I want without being limited by by the government I think I have the right to build whatever I want on my property irrespective of zoning laws and so forth if a socialist is appointed to the Supreme Court and the socialists say I think Liberty in the 14th amendment means that everyone should have guaranteed annual income or that all education through college should be absolutely free or whatever there's no limit the court had tried to limit this in some earlier cases from the Rehnquist era prominently a case called Glucksberg which involved the the claim that there's a constitutional right to die by saying that this Liberty protects those rights that are deeply rooted in the traditions of the country and so it had you had to find a strong historical pedigree for this right but the obergefell decision threw that out did not claim that there was a strong tradition of protecting the right to same-sex marriages would have been impossible to find so we are at we are at sea I think I don't know what the limits of of substantive Liberty protection under the 14th amendment are at this point and I suppose that does get to the question of the courts credibility and authority well just at sea you know who gave them the right to yeah it's the other ship or exactly exactly exactly it you know what is so where do we get the authority to impose what we think about same-sex marriage or what we think about minimum wage laws or what we think about free college tuition or anything else on the rest of the country if it's not in the text of the Constitution or if it's not in something that is objectively objectively ascertainable if it's just whatever I as a as an appointee to the Supreme Court happen to think is very important so I don't know where it erases questions of legitimacy it raises practical questions because the more the court does this sort of thing the more the process of nomination and confirmation we'll become like a an election will become like a political process I suppose it also doesn't give any guidance to lower court judges about where they should draw the lines you're letting other people Fazal be deciding you have a right to use heroin or something even I mean why I think that's right so this will be an ongoing debate about the court and well it has been this issue has been a hotly debated issue for a long time but this is going to this this will fuel that fire well maybe it'll be a healthy fire that leads to a real Civic debate and not simply a political or partisan fire I can't close without asking about baseball someone who visited you in chambers and said that there are almost as many baseball uniforms baseball's paraphernalia your historical stuff on your walls as there are law books that's probably an exaggeration but I guess you go you're a big baseball fan I am I have a you know collection of baseball baseball memorabilia which my wife has encouraged me to remove from the house and take to my chambers so I have a little one section I have more books than baseball but I have a little section of my bookshelf it's full of pictures and things like that that I've collected over the years and you're a Phillies fan I am yes I tough year for very very tough year very tough year any memorable moments in your baseball playing or did you play baseball as a kid I I did not not recruiter for the major no not for the common two things happened at a certain point in my baseball career one I needed glasses and in those days it was really considered not to be too athletic to wear glasses so I made it hard to hit and I overcame that but the other I couldn't overcome and that was when the pitchers started to throw pitches that moved yeah you know the difference between the fastball and the curve that was that that eliminates a lot so but anyway I was not a great baseball player I play till my teenage years but I've been a I've been a very devoted fan I think that if you were a real fan you must stick with your team it's like treason to leave even when times are not good and they they are not and they certainly are not too good right now I grew up as we were we were talking earlier I grew up in near Trenton New Jersey which is at the midpoint of the New York and Philadelphia zones of sports influence and when I was forming my baseball affiliation in the 1950s the Yankees won every year almost every year and most of my friends many of my friends were Yankees fans they were very smug and the Phillies were declining and so for some reason I I can't remember I chose the team that was losing instead of the team that was always winning it's had a big influence on my my personality yeah I did the same thing as a kid that was an anti Yankee fan when most of my friends in that and in New York were Yankee fans and those were still the great days of Matalin and Maris and all that but they waited for the Tigers sort of randomly since I had no connections to Detroit except that I they were sort of challenging the Aggies I wasn't quite going to move for the worst team it was rooting for a team that might have a chance to upset the though they almost never did the yeah the primitive favorite well I'm glad that I'm glad that you were rooting for the underdog Eddie one particularly memorable game you were at or a moment on a baseball at a stadium most people most people who fans have one or two special no yeah um I really recall going to the first the first time I went to a night game my family used to go to doubleheaders on Sunday so far I think the ticket costs a dollar twenty-five and for a dollar 25 we could see two games this was in the old Philadelphia cymbidium I guess I thought were there any management idea and in those days Philadelphia had there was an ordinance that prohibited any inning from beginning after I think it was six o'clock on Sunday so it would now be found unconstitutional undoubtedly indefinitely but anyway for you know for a dollar a quarter each and we would bring in those states you could bring your own food and you could bring in a thermos so we would have a picnic and we would sit in the same seats kind of a semi obstructed view along the right-field fence to see the doubleheader but remember my father took me to a night game and I remember I walked into the stadium and at night it just looks completely different it's an amazing sight I remember a player on the Cincinnati Reds named Ted Kluszewski who wore short sleeves and had big muscles because this was in the days before baseball players at that time thought it was very bad to lift weights I would make you stiff and muscle-bound so there was none of the weight training that goes on today but Ted Kluszewski stood out because he had these he was a really muscular guy and he hit a home run over there was a big fence in right field like about a 25-foot 30-foot fence no snow stands out there but just this big fence he hit a home run and went over this fence and just disappeared into the night and I still remember that well that's a great memorable note I wish to close justice leto thanks so much for taking the time to be with me today and thank you for joining us on conversations

Channel: Conversations with Bill Kristol

Views: 73,496

Rating: 4.5576472 out of 5

Keywords: Samuel Alito (Judge), Supreme Court Of The United States (Court), William Kristol (Politician)

Id: Gd2VzBmr6YM

Length: 81min 5sec (4865 seconds)

Published: Sun Jul 19 2015

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[u/coldnorthwz]

He goes into free speech stuff and some of the controversial or tough opinions he was part of. He also talks a bit about substantive due process and the politicization of the nomination process.