Samuel Alito Transcript

Taped July 10, 2015

Table of Contents

I: Path to the Supreme Court 00:15 – 34:35
II: From Oral Arguments to Decisions 34:35 – 55:50
III: What Is Free Speech? 55:50 – 1:08:37
IV: Obergefell v. Hodges 1:08:37 – 1:15:44
V: Philadelphia Baseball 1:15:44 – 1:21:04

I: Path to the Supreme Court (00:15 – 34:35)

KRISTOL: Hi, I’m Bill Kristol. Welcome to CONVERSATIONS, and it’s a great honor to have here today Justice Samuel Alito. Thank you for joining us, Justice Alito.

ALITO: My pleasure. Thanks for inviting me.

KRISTOL: Good to have you. So how did you learn you were going to become a Supreme Court Justice? That must be a striking moment in one’s life.

ALITO: It was. I remember it exactly. I was sitting at my kitchen table at home in New Jersey, drinking a cup of coffee and –

KRISTOL: You were a judge at this point?

ALITO: I was a judge on the Third Circuit, and I had been there for 15 years. And the phone rang, and it was a Deputy Counsel in the White House Counsel’s Office, Bill Kelly, who called me to say that the President was seriously thinking about nominating me.

First, he told me that Harriet Miers, who had been nominated for this seat, was going to withdraw, and that was not public information at the time, and then he said the President was seriously thinking about nominating me, and was I still interested? And I said, “Yes, I’m 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. Then, she consulted with my son, and together they figured out 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 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 would be very honored.” And there was a pause and he said, “Well, do you accept?” He wanted to seal the contract. So I said, “Yes, of course, I accept.”

KRISTOL: And you had met the President before that?

ALITO: I had, yes. He interviewed me in July.

KRISTOL: For the opening?

ALITO: Yeah, the sequence was that –

KRISTOL: That was a complicated year for the Supreme Court, comings and goings.

ALITO: It was complicated. I had actually been interviewed the first time in 2001. I think that the Bush Administration, probably like all administrations these days, began to put together a list of potential nominees long before there was a vacancy because the modern process of vetting nominees has become fairly elaborate.

I was interviewed in 2001 by White House Counsel and then in the Spring of 2005 before the end of the Supreme Court’s term. I guess 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, 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 withdrew.

KRISTOL: What are these interviews like, to the degree you can discuss them? It must be kind of strange, you’re a sitting appellate court judge, been there quite a while. Suddenly there for interviews, like back to college or something.

ALITO: It is unusual. Well, 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 nominee’s 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 pretty extensive.

The interview with the President was particularly unusual for me, having been kind of a cloistered appellate judge for 15 years. I was asked to come down to Washington for an interview, and the interview was on a Saturday so I checked into a hotel downtown, and they said that I was to, 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 a spy. But they wanted to make sure that media didn’t get any word about people who were being interviewed. Then, we went to the White House and, as I said, it was Saturday morning and they brought me up to the President’s living quarters. First, when I walked into the room, a friend of one of the President’s daughters was there, and then he left and then –

KRISTOL: So there’s no, like, pre-brief? You don’t meet first with all the staff to tell you what it’s going to be like?

ALITO: I had been in interviews before, but not on this particular occasion. So the friend left and a little Scottie came running in, and then the next thing I knew the President came in, wearing kind of casual Saturday clothes. I was wearing a suit. So that was my interview with him.

KRISTOL: Did he ask anything striking, or do you think his mind was already made up? I wonder how much the President could learn in such an interview. You know?

ALITO: I don’t. As far as I know, his mind wasn’t made up. It was a very pleasant interview. We talked about the same sort of things, about the approach to judging, and then we finished up by talking about baseball.

KRISTOL: I was about to say, he’s a baseball owner, you’re a great Phillies fan.

ALITO: We spoke a little bit about baseball. We went over to see the TV where he watched baseball games.

KRISTOL: That’s good. Now, going backwards, you have long been interested in the judiciary as a possible career. How did that happen? People would be curious, I think. Obviously, you went to law school but even before that I think you had thought a little bit about the law and judging.

ALITO: 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, draws a lot of people into becoming lawyers. One year the – 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 about the exclusionary rule. So it really made me start to think about the Constitution and what it meant.

If you look in the Constitution, there’s nothing in the Constitution about the exclusionary rule. The Fourth Amendment says no unreasonable search and seizures, but 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 sort of is what got me started.

KRISTOL: That was at Princeton?

ALITO: Yeah.

KRISTOL: Who was teaching? Was someone in particular teaching criminal law?

ALITO: Well, it was in kind of a transitional period. The professor – I had two – Charles Miller taught the main course, but he was there for just a short time. Walter Murphy had been teaching, and he was on leave during the year when I took it. Then he became my senior thesis advisor.

He had become very interested in comparative constitutional law. He had done a lot of work with the Irish Supreme Court. I had taken these courses, and I was sort of looking for, I must confess, a summer boondoggle in Europe and there was a scholarship to go to Europe to study something, whatever you wanted, so you had to propose something. I had never met him, I went to see him, and I said I’d like to write my thesis on the Italian Constitutional Court and go to Italy to do some research.

KRISTOL: “I’m interested in the summer boondoggle.” He probably knew. He was probably used to students –

ALITO: So that came about.

KRISTOL: So you went to Italy and wrote on? That’s great. But your father wasn’t a lawyer or there were lawyers –?

ALITO: There were no lawyers in the family. Both my parents originally were teachers, and my mother stayed a teacher for her whole life. I think she only left when the police came to her classroom when she reached the mandatory retirement age and 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. It’s hard to believe, in those days, but – today all the state legislatures, I think, have enormous staffs just like Congress – but in those days the New Jersey legislature had, prior to my father’s starting, they had two staff people, period. They didn’t have partisan staff, they didn’t have nonpartisan staff. They had a bill drafter and an accountant, and then they hired my father as the researcher so he was their researcher so he did a lot of drafting of legislation and researching projects for a nonpartisan position.

So I became somewhat interested – that was one of the other things that got me interested in law because, although he wasn’t a lawyer, he was working with legislation.

KRISTOL: And I read somewhere that he sort of personally had to do the redistricting of the legislative district after the Supreme Court insisted on one man, one vote.

ALITO: I remember lying in bed listening to this clanking of a mechanical – it’s hard to believe – a mechanical adding machine. 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 a mechanical adding machine.

KRISTOL: It’s a little different today. And so then you decided to go to law school and you went to Yale Law School, very prestigious law school, not Harvard, of course. But someone has to go to Yale Law School. Why Yale Law School?

ALITO: It was – it’s smaller and I thought that would be better, 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.

They were living in – you’ll know the name of this building; I don’t remember – but there was a dorm, horrible little rooms, everybody packed together that went to the law school.

KRISTOL: I didn’t go – I remember visiting friends at the law school. It wasn’t the most lavish living quarters.

ALITO: So I thought, well, Yale has to be better, it’s smaller and didn’t really have the same grading system. Harvard has now thrown in the towel, and Harvard Law School has now essentially grading/non-grading system as Yale, but in those days it wasn’t true.

At Yale, our first-term courses were credit/fail and after that it was honors, pass, low pass, fail. I don’t what you would have had to do to get either a low pass or fail; it was almost impossible. So basically you could go through with doing minimal work and you would have all passes, and it would look reasonably respectable.

KRISTOL: And I’ve read that you read some works of the great Yale Law professor, Alexander Bickel, before you went to Yale Law School. Is that – ?

ALITO: I did, yeah. The book that, the first book of his that I read was called The Supreme Court and 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 for them out there to find.

This was – the orthodoxy was still very much under the spell of the legal realists who said what judges are doing is really implementing their own policy preferences although they dress it up in fancy language. If you start with a premise like that, what would make a decision legitimate, and that was what Bickel had begun to address earlier. But so he began as really, as a defender of the Warren Court, which was a very un-theoretical 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 Frankfurter, who became a dissenter – but for the most part, they did not seem to worry very much about the theoretical justifications for what they were doing.

So Bickel began as a – to provide a theoretical justification for what they were doing, at least in the early years of the Warren Court, but by the time, The Supreme Court and the Idea of Progress came out in the late 1960s, Bickel had become more and more doubtful about what the Warren Court was doing, particularly in the later years.

KRISTOL: And you read his book or books as an undergraduate?

ALITO: I read his – yeah, I read his book, I 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 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 may not remember, Charles Reich.

KRISTOL: I do remember.

ALITO: The Greening of America.

KRISTOL: Huge spokesman for the New Left. Though he hadn’t always been, right? He had been much more normal, so to speak, moderate liberal. Constitutional law professor.

ALITO: He was a very influential kind of avant-garde liberal 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. His thesis was that property rights, traditional property rights, are 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 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. So there were cases about due process rights or the termination or denial of welfare that were seen as coming from his scholarship or related to his scholarship.

By the time, he taught me he was experiencing, I think, some personal turmoil and it was a 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.

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 – it was a combination of the two. So I had him for Constitutional Law, and I kept notes of any Supreme Court or any other case that was even mentioned during the course of the term, and at the end of the term, there was exactly one that had been mentioned.

KRISTOL: Not really a deep dive into the legal reasoning of the Court there.

ALITO: 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’d 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 other subjects. That was my ConLaw course.

The professor who taught the big section that term on Constitutional Law was somebody who wasn’t that well-known at the time, Robert Bork. And I went to – as soon as I saw that I had been assigned to Charlie Reich’s class – 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 said, “Can’t you possibly switch me so I can be in the regular Constitutional Law class?” Never in the history of Yale Law School has anyone ever switched a class.

KRISTOL: They’re supposed to be progressive; they’re supposed to change; they’re not supposed to be bound by history in that way.

ALITO: I was consigned to this experience. It 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 in his term, it was possible that there would be a note on the bulletin board that he had gone to San Francisco and the course would then be over. And I came back to school after Thanksgiving and I looked at the bulletin board and there was a note that said, “I’ve gone to San Francisco, that’s the end of classes.” And that was the end of the classes.

KRISTOL: So the lesson is if you want to become a Supreme Court Justice, take a totally worthless ConLaw course your first term at law school, I guess.

ALITO: So I’m self-taught. A lot of people say, “This explains a lot.”

KRISTOL: I’m curious, I hadn’t really intended to ask about this, what was it like – I mean, it was funny that you had Bob Bork teaching one section and Charles Reich, another. In terms of diversity of thought, obviously I’m sure the faculty and student body were mostly, maybe overwhelmingly liberal, but did it foster – was it tolerant? Was it friendly to dissenting views? How does that compare to law schools today? I’m just curious.

ALITO: It wasn’t bad. I think the students were overwhelmingly liberal. But there were a few of us conservatives, kind of hiding. Clarence Thomas was there at the time. John Bolton was there. It wasn’t – the classes in those days – this was true in colleges as well as in law school – were not highly politicized and much less so than today.

KRISTOL: Do you think in law school today even they are? I thought maybe law school had kept up the tradition of sort of arguing both sides of the case or the law a little more than the undergraduate.

ALITO: I think that’s most definitely true. It’s much better. But there’s still – there is a kind of, you know, an orthodoxy that all the students are, I think, I assume, that’s what they’re supposed to think.

KRISTOL: I took one course of law school when I was in grad school because Constitutional Law was one of the sort of minor fields for the exams, and it was John Hart Ely, who was a very distinguished – I didn’t realize at the time I was taking the course that he was so distinguished, or I guess was about to become so distinguished. Very good course, this was I think ’75 maybe, and he volunteers something in this course – I believe something he’d either written at the time or soon after – that Roe v. Wade had no basis in the Constitution or some formulation that became fairly well known. And he was liberal, and I think pro-abortion rights.

As far as it went as a legislative matter. It’s the only time I remember thinking this – there was a kind of a gasp and a certain amount of “Oh my God, how could a professor say this,” but I was sort of struck by his willingness to engage in genuine debate.

ALITO: Yeah, I think there’s much more in law school than in the other subjects because 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, I think, because of the adversarial system of law, there is more of a preservation of the idea of actually debating issues than is probably true in the humanities and the social sciences today.

KRISTOL: That’s good. Bad for the humanities but good for law school, to some degree. Let me ask you one more just a biographical question, as I remember, you served in Washington in the Justice Department in a couple of capacities, for most of the Reagan Administration or almost all?

ALITO: 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 as U.S. Attorney of New Jersey.

KRISTOL: So I’m curious about that because that seems to me the less common – I think most of your colleagues on the Court served at the Justice Department at one time or another, I suspect, but being a prosecutor, which you were for some stretches of your legal career. What was that like? Do you recommend it to young people for both for the sake of the country and as a learning experience? How did it shape you?

ALITO: I do. It was a wonderful experience. I was an Assistant U.S. Attorney right after I had a clerkship on the Third Circuit, the court that I eventually joined. After that I went across the street to the U.S. Attorney’s Office, and I was able to go to court immediately. I argued, I mostly did appellate work, I argued a couple dozen cases in the Third Circuit at that time.

It’s very, very hard for young attorneys in private practice to have any experience in court. And the U.S. 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 a public defender.

KRISTOL: Did you enjoy arguing the cases in court as opposed to all the research and other stuff?

ALITO: I did, I liked all of it. I liked arguing cases.

KRISTOL: As a non-lawyer, what is that like? It looks challenging to me and intimidating but – ?

ALITO: 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 the morning argument 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 said the judges are interrupting the lawyers, they’re interrupting each other, they’re saying things that reveal what they’re thinking about the case. Because the standard practice on the continent of Europe is for appellate judges to sit there and listen and that’s it. I think in some courts they never ask questions, now they may ask a few questions but it’s nothing like arguments 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 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 as soon as 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 you may have a period of time when there aren’t any questions, and so you need to be prepared to make the points 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 subject. So you need to be prepared 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 in the argument a series of questions about point C, you need to answer that and then work your way back.

And the really good advocates will read the Court. They may get a sense of an argument that isn’t going to work. They have an idea of exactly where they want to go, and they maybe have a preferred route to get to the endpoint that they desire. But they may see that there’s an accident here or there’s a traffic jam here so there’s another route maybe that you can get 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 better than the alternative.

KRISTOL: So in the Third Circuit – we’ve all by now, you can listen to the Supreme Court arguments, we all have a sense, if you care about – or one has a sense of how that works at the appellate circuit level there, a typical case would be a three-judge panel, I suppose?


KRISTOL: And how long are these oral arguments. Is it like the Supreme Court? Or more time?

ALITO: 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 as opposed to 30 on the Supreme Court, but it wasn’t rigid at all.

KRISTOL: So it could go over a few questions?

ALITO: Yeah, when I was presiding, which 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 oral argument, wonderful judge named Eddie Becker and when the red light would go on and the lawyers would get ready to sit down and he would say, “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. The start of a typical argument morning in the Third Circuit, the courtroom might be fairly full of people, but by the last case there were generally two people there. 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 there just because they were interested.

KRISTOL: And either at the appellate level or the Supreme Court level did the oral arguments make much difference?

ALITO: They can make a difference. They probably –

KRISTOL: You’ve gotten these massive briefs that are thoroughly researched and presumably reflect the work of dozens of lawyers and prestigious law firms so from the outside, one wonders how, you know, could being adept in an hour-and-half argument, could that really change a Justice’s mind or a judge’s mind compared to the written material?

ALITO: Well, that’s exactly right. We do a lot of reading and a lot of thinking about the cases before we take 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 you will go from thinking the case should be affirmed, to reversed, to making some other sort of lesser modification in the position that you were contemplating.

The oral argument on the 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 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.” That kind of makes a difference.

But, he hadn’t brought that to our attention, or “my client is in bankruptcy” so if a party who is sued is in bankruptcy then all the litigation has to stop. Or that lawyer will tell you something that makes you realize that you really don’t have jurisdiction over the case.

KRISTOL: Doesn’t happen at the Supreme Court level?

ALITO: It doesn’t.

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