 Look at that, May 40th here, it's just a spectacular beach day here in the U.S. And we've got some monster waves, some big surf. What better time to talk about Samuel Alito and his crusade against a secular America. This is from The New Yorker, it was published about three months ago. Here by Margaret Talbot. What is justice leader crusading against a secular America? It was a way of saying, I'm the real thing. So much of what we do is influenced by other people. Ronald Reagan made many people conservatism cool again. More socially acceptable, more popular. It was very hard to go against the crowd. For Alito, Yale Law School too was mined with counter-cultural bombs. In 2005, a member of Alito's class, Diane Kaplan told the Yale Daily News that a lot of us were hippies, love children, political dissenters, draft dodgers. It's kind of weird to hear about people on the left being political dissenters when the left dominates almost all of our institutions. It only dominates law schools, it dominates the professions, it dominates law, it dominates medicine, social work, dentistry, accounting. The left dominates the media. Much of Fortune 500 companies, non-governmental organizations. The left dominates. So how exactly are people on the left these radical dissenters? She noted that Alito and his Princeton friends came to class with button-down collars and looking very serious. How are you dressed going to have a profound impact on you? When you dress in a suit and a tie, that's going to affect you. So the more religious the Jew, the more likely they are to dress well. To dress up, to dress a black suit, white shirt, that sort of thing. So what you wear profoundly affects how you think and how you act. Alito has described his classmates as overwhelmingly liberal, but noted that there were a few of us conservatives kind of hiding, among them Clarence Thomas and John Bolton, who served briefly as President Donald Trump's National Security Advisor. Alito had come to Yale eager to study with one of his intellectual heroes, Alexander Vickle. So I am on my way to Botany Bay. Botany Bay is where Captain Cook landed in something like 1776. It's about four miles directly from here, but I'm going to go around the coast, so it'll be more than 10 miles probably. And we're looking out right now at Kudgy. And we go about seven miles that way, we'll end up at the Sydney Opera House. So that's the plan for today. So I'm going to pause here on the rocks above this magnificent ocean, do some live streaming. A charismatic and prolific scholar who believed that the Warren Court had indulged in egregious activism, but Alito wasn't placed in Vickle's constitutional law class. So why do so many conservatives turn left when they join professions? Because it's very hard to turn against what the majority of your profession is doing. So Warren was a Republican, but he turned left on the court. And many, many conservatives appointed to courts turn left because it's human nature to want to be popular, to go along with the crowd, to fit in. So I'm sitting here kind of on the edge of the cliff, and I wouldn't be feeling nearly as at ease in St. Louis, or New York City, or San Francisco, sitting on the edge of cliff in case some super predator came up behind me and just pushed me over. And that's what happens in New York City. People stand as far away from the platform as possible because there are so many crazy people and super predators who may very well push you in front of an unrushing train. Now, we got some predatory insects here in Australia. They were going to keep an eye on them. We didn't see any poisonous snakes. And Mark Dwyer, meanwhile, was assigned to the staunchly conservative scholar Robert Bork's course, and he later told the Times that Alito had seemed jealous. One of the worst pairings of student and professor in course scheduling history, Alito ended up with Charles Reich, the eccentric counterculture guru who had written the best. I remember I was at acting school in 1994, and I got these four free acting classes. And so my fourth acting class, I'm not planning to sign up for more. They paired me with someone and the teacher said, oh, this could be an explosive combination. So the teacher kind of primed me to not get along with the person that I was going to do a scene with. And then after we did the scene and the teacher gave his reaction, I used the F word and the teacher threw me out of the class. So, yeah, when you're primed, oh, you're not going to get along with this person. That can have a profound effect on you. I remember when my father was kicked out of the 7th Adventist Ministry in 1980. I was 14 years of age and some people said to me, oh man, how's that going to affect Luke's relationship with the church? It's just going to destroy his relationship with the church. As a 14-year-old, I was happy to allow my father's disfellowship from the 7th Adventist Ministry that destroyed my relationship with the church because why did I want all the restrictions that came with being a 7th Adventist? We'd just gotten the TV for the first time in the summer of 1980 and I saw a lot of things on TV that I wanted, particularly sex and fame and glitz and glory, all those secular virtues. So, I was happy to leave the 7th Adventist Church behind and happy to have an excuse to do so. The Greening of America, an excerpt appeared in this magazine. Alito, having read the book, formally requested to switch out of the class, but he was told no. Reich loved flower child sensibilities as much as Alito hated them. He even saw bell bottoms as a form of rebellion worth validating. Before joining the Yale faculty, he had been a clerk for justice. I remember after high school, so June 1984, I decided to move to Australia for a year with my brother and I brought a suitcase of stuff. I hadn't been turned on to crystal light at that time, but I didn't really bring any decent work clothes and so my brother let me a lot of his clothes so that I could go out and look for a job and he was kind of amazed I didn't have decent clothes. I went into my brother's closet and he had all these bell bottoms and thought, oh, I'll wear these, but my brother told me not, that's not on. You can't wear bell bottoms. This is 1984, not 1978. He wouldn't let me wear bell bottoms to a job interview. And then there was a time I was working at GGA Coles, which is the equivalent of Kmart. Got a job as a stock boy and I saw these, what looked like slip on shoes. I think they're called them skitches. I'm wearing them now. Shoes like these are very comfortable. You just slip them on. So I saw some and I bought some for about $1. They were so comfortable and I walked out of work in my new shoes. And I don't get very far down Gundun Street in Gladstone and people ask me like why I'm wearing slippers. So apparently there were slippers, but there were no substitute for shoes. I like common sense. Other thing that surprised me when I moved back to Australia is that almost everyone puts their clothes out to dry on a clothesline. In America we always put our clothes in the dryer, but in Australia they put it on the clothesline to save on electricity bills. It just seemed weird. I guess electricity prices were probably two, three times the equivalent of American electricity prices. They still do that. Still people I live with put their clothes out on an indoor clothesline set up. And the other thing I learned is that men don't blow dry their hair. I came to Australia in 1984 and was looking to borrow a hairdryer and I was taught no, men don't blow dry their hair. That's for sheilas. What kind of people become public intellectuals? People who achieve success in one area of their life. I remember I broke the Mark Wallace HIV story in the San Fernando Valley that Mark Wallace was a likely patient A, patient zero, and this ongoing outbreak of HIV in the porn industry. And I was getting tens of thousands of readers to my blog every day. And I feel a sense of entitlement from this attention. Now I'm going to transition to being a public intellectual. I was ready to leverage my scoop about HIV in the porn industry becoming a public intellectual. And so this Professor Reich publishes an acclaimed book about the greening of America. One of these waves is going to come up here and get me. And due to all the success you got through the book The Greening of America. But aha, I'm now going to become a public intellectual. So people can be very well qualified to talk about one topic. But then they get an overinflated sense of their worth. Think, ah, because I'm so acclaimed talking and writing about this one topic. People probably want to know what I think about all sorts of areas where I don't have any specialty. And here I am. Back to this New York article, Sam Alito's Crusade Against the Secular America. It's not over, guys. Sam Alito ain't done yet. Garcia for Rolling Stone. And in a law review article criticized police harassment of citizens folding in his own unpleasant encounters with cops. Many students were charmed and inspired by Reich. Bill and Hillary Clinton both studied with him. When Bill Clinton became president one of his environmental initiatives was called The Greening of the White House. Alito was not one of those students. In appearances and interviews he has spoken disparagingly of Reich's most bizarre course. Reich, Alito said, told his students that he 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 and the course would then be over. I remember how shocked I was when I got to UCLA and I took two classes. Man, that's getting closer. Took two classes with economist Russell Roberts who graduated with a PhD from University of Chicago. He now posts the podcast Econ Talk and I was shocked that Russell Roberts took off like six days for Jewish holidays and he denounced well in advance like I couldn't imagine that someone would take all these days off work for Jewish holidays. It wasn't something we had at Seventh Day Adventist. Alito recalled that, sure enough, he returned from Thanksgiving break to find just such a note. He joked to Crystal that he was self-taught in constitutional law. At Yale, Alito's occasional hijinks seemed to have been as old-school as they were at Princeton. Grace told me that Mark Dwyer... Okay, getting secular blessings from Glyb Medley and secular blessings to you too. So I've kept out with my sponsors here in Australia and I don't know about you but I need new words for things. So I remember after I'd have intense sex with my girlfriend and she says, you know, how was that for you? I'd say, amazing. She says, amazing? Was that all it was? Like, she wanted, like, new words. And so the guard word, as someone who's been religious for almost all his life and a believer like the guard word can get really stale for me. So I've been substituting reality. And so instead of talking to my sponsors or talking to myself about having a new relationship with God, I talk about, let's have a new relationship with reality. And so that's a way of talking that includes secular people. Take my sponsors, please. No, I need them. I need them. Because in their journey, you know, I get inspired and I get energy from my journey. So I was talking to one sponsor this morning and he'd taken on a bunch of sponsors and suddenly for that one minute he talked about working with his four new sponsors. Like, he got a whole new level of strength and clarity and passion in his voice. Like, his voice just transformed when he talked about the work he was doing with his sponsors. So, like, I think I maybe attract a lot of sponsors who have similar problems to me with narcissism, getting diagnosed with narcissistic personality disorder. And so if you're narcissistic, one of the healthiest ways that you can meet your need for attention and admiration is to take on sponsors. Lots and lots of sponsors. You're working with sponsors and you're guiding sponsors. That fills your need for attention and significance. It's a way to get, you know, admiration and you maybe have to do it in a healthy way that's good for you, good for other people. I used to smoke a pipe and Sam took a rubber band and cut it up in little pieces with his tobacco. Alito sometimes had a glass of scotch, Grace recalled, and Dwyer once put salt in Sam's ice cubes. In December 2008, when Alito had been on the court for near... Now, check out these waves, mate. Really rare. They're great waves. Koji. But, uh, this is an extraordinary day for surfing. There's some marvelous waves out here. Three years. He spoke at a fundraising gala in Washington for the right-wing magazine, The American Spectator. Now that his position was secure for life, he could afford to be a little caustic about that whole 60s thing. He poked fun at the left's idealism by drawing a parallel between Barack Obama and Eugene McCarthy, the liberal icon who unsuccessfully ran for the presidency in 1968, while, in Alito's words, he sought to restore hope and to bring about change. No doubt the bafflement of many younger people in the audience, he mocked the psychedelic band Country Joe and the Fish, as well as its Vietnam War protest song, I Feel Like I'm Fixing to Die Rag. Alito complained that for the past 40 years there have been places in this country, sort of like the island in Jurassic Park, where it's always been 1967. The 1960s inflected views still reigned in outposts like academia, there was cause for conservative triumphalism. During the war in core era, Alito said the legal vanguard had imagined that the law would move dramatically leftward, but they turned out to be wrong. To laughter, he added, to coin another phrase, sweet dreams and flying machines in pieces on the ground. Alito was quoting the James Taylor song Fire and Rain. The lyrics, of course, aren't about the crushing of progressive dreams. They're about Taylor's addiction struggles and a friend's suicide, but you wouldn't expect a guy Lombardo fan to know that. Ah, so the New Yorkers poking fun of Sam Alito for not sticking to the originalist intention of the writer of Fire and Ice. I've seen Fire and I've seen Rain. All right, so the New Yorker is poking fun at Sam Alito for not being an originalist with regard to pop music lyrics, but simultaneously poking fun at him for being a stodgy old originalist, intentionalist with regard to the founding documents of the United States of America. So originalism for me, but not for the, is the New Yorker critique. How much individual states, cities, clinics and activists push back against doves. It will impose a fundamental and for a majority of Americans undesired reordering of women's reproductive lives and expectations of equality. In 1992, when the court upheld Roe in the Casey opinion, it acknowledged what is known as a reliance interest. Two decades had passed since the court had first recognized a constitutional right to abortion, and since then, put it, people have organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail. Or in the event that contraception wasn't used. So do you think the New Yorker would be praising the US Supreme Court for its adherence to or reliance doctrine say with regard to slavery or with regard to any practice that defines morally reprehensible? No. So from a New Yorker perspective, the reliance doctrine is more important from the lives of tens of thousands of babies. Moreover, the ability of women to participate equally in the economic and social life of the nation has Okay, did you know that overturning Roe v. Wade is going to bar the ability of women to participate equally in the nation? Shocking. So different groups of different gifts obviously the gifts of men and women are different you shouldn't expect equality in all things. Women can go for the gusto with their careers if they want, simply they should abstain from having procreative sex, keep your legs closed you won't need an abortion be responsible you won't need an abortion but women's equality is threatened such a lame way of looking at life that everything has to be increasingly ever increasingly equal but like a limit in calculus we never get there but thanks to the hectoring, bullying, educating function of left liberalism we're always being pushed more and more towards ever increasing levels of equality it's a fool's quest because people have different gifts sexes of different gifts different nations, different religions different communities of different gifts and ever pursuing equality is a fool's errand been facilitated by their ability to control their reproductive lives Alito's dog can't they still control their reproductive lives simply abstain from having procreative sex say you can put it in my mouth or you can put it in my ass but you can't put it in my front door then you can control your procreative life you can control your reproduction simply abstain from having sex simply abstain from having the type of sex that leads to having babies and you dismiss this appraisal as an intangible form of alliance based on an empirical question that is hard for anyone and in particular for a court to assess it's not unknown for Jewish girls who have horny boyfriends but want to maintain their technical virginity for their marriage limit their boyfriends to the mouth or the ass that's it, that's where you can penetrate right? because they want to keep their virginity for marriage and on the one hand you can mark that but they are reserving something special for the marriage it is a way of taking control now you're putting yourself in a dangerous situation where the guy in the throes of passion and you perhaps in the throes of passion may not necessarily be disciplined when it comes to sexual passion men in particular but also women are often not so disciplined so maybe you'd be best this is so important to you to sexually abstain well, but control is still available and if you fear that abortion is not going to be available in your state you can fly to another state or you can abstain from doing the things that will get you an unwanted pregnancy it doesn't sound like such a horror show to me and surely part of the court's job is to ponder the likely consequences of upending such an expectation that abortion and birth control would be available there are consequences of upending such an expectation yeah there are consequences to upending the reliance expectation there are consequences to upholding Roe v. Wade and the murder of tens of thousands of babies there's no decision of significance that does not have consequences a law professor at Tumble University who specializes in health and family law told me that courts decide all the time whether or not there are consequences to laws only ok, she specializes in health and family law so being very judicious about who you go to bed with would seem to me to be a key component of being healthy psychologically and physically health isn't just physical, it's also psychological the more people you go to bed with, the more likely you are to get messed up socially, psychologically in addition to physically seemed willing to accept the notion of reliance in only one realm property and contracts that's a really formalistic way to think about reliance a really crabbed notion of what we can know about a law's effects as the liberal justices pointed out in their dissent the dobs decision endangers other Supreme Court presidents in particular it leaves vulnerable the cases that established unenumerated rights to privacy, intimacy and bodily autonomy rights that the constitution did not explicitly name of the previous court majorities had seen as reasonable extensions of the liberties protected by the 14th amendment many Americans have also built their lives on precedents such as Riz World v. Connecticut the 1965 case confirming the constitutional right of married couples to buy and use contraception many people have built their lives with the understanding of a traditional family means a man married to a woman that mean that we should not have gay marriage because many people rely on a particular understanding of what a family is and what a marriage is these not beautiful ways we have the best ways here don't we folks Lawrence v. Texas the 2003 case recognizing a right to same-sex intimacy and Obergefell v. Hodges the 2015 case recognizing a right to same-sex marriage would Alito grant that these decisions have created reliance interests in Dobs Alito promised that those other precedents are safe and that abortion is different from other personal decisions because it destroys what the Mississippi law describes as an unborn human being he insisted nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion but Alito's assertion about the singular preciousness of a fetus does not alone create a legal standard Neil Siegel a Duke University law professor told me because I said so is not a reason not in parenting and not in law the anchoring logic of Alito's opinion is that rights not stipulated in the Constitution pass muster only if they have long been part of the nation's traditions by this standard what is to preclude the undoing of the right to same-sex marriage guaranteed by Obergefell oh no that would be the worst oh my god what a hellscape we live in if Obergefell was overturned I don't even imagine that dark dark day ah there's a there's a swimmer is he on a board right in the middle of your screen yeah he's on a board there's some magnets in the way he's made so all rights can change when the situation changes curiously dissented in that case saying that a right to same-sex marriage was contrary to long established tradition well it is right there's absolutely zero precedent in history for same-sex marriage it's an entire new innovation of the past 30 years indeed Clarence Thomas in his Dobbs concurrence argued that the particular cases protecting same-sex marriage and intimacy along the contraception were very much up for reconsideration Thomas left out loving the interracial marriage case the Dobbs dissent issued by Stephen Breyer, Elena Kagan and Sotomayor sharply challenged Alito's assurances assume the majority is sincere in saying for whatever reason that it will go so far and no further they wrote scouts honor still the future significance of today's opinion will be decided in the future and law often has a way of evolving without regard to original intentions a way of actually following where logic leaves the court bolstered not only the anti-abortion movement but also the conservative legal movement an effort associated with the Federalist Society which since its founding in 1982 has promoted an originalist jurisprudence based on narrow readings of the constitution narrow as opposed to you know, unlimitedly flexible so the pochart in Jewish terminology the plain meaning of the text as opposed to the allegorical meaning of the text and the mystical meaning of the text alright so it's not such an absurd position he promised would overturn the decision the movement might have reached its breaking point last winter J. Joelle Alicia former Alito clerk who now teaches law at the Catholic University of America wrote in city journal that there was no tension between those who saw originalism as a means to achieving some other substantive end and those for whom it was the only legitimate constitutional methodology yeah, that's a pretty good breakdown of pretty significant difference you don't always make your arguments on the basis of what you truly believe in public policy and public discussions you make arguments on the basis of what's going to be most effective not necessarily what's the most true some conservative skeptics of originalism were particularly frustrated with a 2020 majority opinion by Justice Gorsuch concluding ostensibly through originalist logic that title 7 prohibitions on employment discrimination apply to gay and transgender people Alito dissented declaring that the inclusion of LGBTQ people in title 7 protections will threaten freedom of religion, freedom of speech and personal privacy and safety yeah, you just can't increase rights for one group without taking away rights for another, increase rights for minorities you take away rights from majorities liberals look at rights as something you can just endlessly expand look at the zero sum nature of many rights you got a good story, who cares about facts if you don't have the facts or the story then what do you do? if the court's originalists couldn't even successfully deploy their approach to overturn Roe, then what good was it? Alicia wrote that for the conservative legal movement the stakes in Dobs could not be higher it was either complete victory or crisis inducing defeat Alito's opinion was a complete victory an analysis in national review hailed the decision as the movement's crowning achievement for Alito Dobs was also the culmination of a 16 year effort to make his mark on the court when he first became a justice he made as a mini-me of another Italian-American Catholic from Trenton, Antonin Scalia some commentators even referred to him as Scolito but, although two justices frequently voted together they were different in ways both temperamental and jurisprudential so I think Ann Carter heeded the John Roberts appointment to achieve justice at the Supreme Court but she liked the Sam Alito appointment and was right if you're a conservative Alito could be as a cervic in his writing as the irrepressible Scalia but he rarely seemed to be having a good time Scalia's bold commitment to originalist readings of the Constitution sometimes led him to outcomes that he, as a law and order type didn't much like such as supporting the First Amendment claims of a flag-burning protester or upholding the Fourth Amendment rights of criminal defendants adopted a more elastic form of originalism which has allowed him with plotting consistency to arrive at results that a loyal Republican would prefer whereas Scalia's admirers praised his intellectual commitment to originalism Alito's admirers in the conservative legal movement often highlight his practical approach at a recent American Enterprise Institute conference honoring the justices jurisprudence Keith Whittington and his other politics at Princeton said that Alito's opinions can be a little frustrating if what you're looking for and thinking about is how to draw much broader themes out of his work as far as theoretical approaches that might apply Yeah, so what's more important to you in your jurisprudence, in your life in your politics, in your pundits is it principles or interests? So it sounds like from that description that Samuel Alito puts a higher priority on his group's interests rather than on jurisprudential principles while that other Italian-American right, he apparently put more emphasis on principles rather than interests so it is a time and a place in life where you prioritize your interests over principles and there's a time and a place to prioritize principles over interests and I think it should always be one or the other so it's clearly apparently always prioritized principles over interests to a wide array of cases but it was refreshing, Whittington said to see a justice really try to tie the arguments and the logic and the application to the details of the facts of the situation From 2006 to 2020 four liberal justices sat in the court According to Adam Feldman in the empirical scotus Alito is the conservative justice who has joined with the liberals on the court the least often he never once provided them with the swing vote in a 5-4 decision Since the 2010 term he has joined with three liberal justices and Roberts only once in an uncontroversial case that defined the phrase tangible object Okay, that doesn't bother me does that bother you that I'm sorry This past term Alito got the most attention from dogs but he also signed on to several other 6-3 decisions that achieved right-wing goals He joined a far-reaching decision curtailing the environmental protection agency's ability to limit carbon emissions without congressional authorization He also joined an opinion compelling Maine to subsidize the tuition of students attending religious schools and a decision that expanded the right to carry firearms in I hear about Samuel Alito's decisions they seem to pretty much mesh with my vision for America my understanding of what is right they seem to mesh with my principles and my interests The reversal of law and court norms may be accelerating under today's lopsided majority but Alito has been pushing the court rightward since his arrival Richard L. Hossen, the election law expert told me that Alito is uniformly hostile to voting rights so does that mean he doesn't think people should have the right to vote? Somehow I suspect that this is something of an exaggeration I don't think that Samuel Alito is a my god, look at that wave look at that surfer getting smashed that wave looked like it was 5 times taller than the surfer right in the middle of the screen there's no turning back America to a culture of values America is a moral vacuum like the Netherlands uh I'm not ready to give up on America yet bro I'm an American not an American but I don't know how we're going to turn back the clock on secularism I think secularism every increasing amounts of it is pretty much inevitable been a major force for public spending in campaigns Alito encouraged the filing of suits that have allowed the court to curb the power of public sector unions he authored the 5-4 opinion in Burwell the hobby lobby stores in 2014 which exempted some companies from providing contraception coverage to their employees and he has helped advance a new regime of jurisprudence strengthening the rights of religious people oh my god this is awful Sam Alito leaves that might have the right not to provide free birth control to your employees and he's expanding the rights of religious people shocking especially conservative Christians and especially when their beliefs conflict with anti-discrimination law in environmental cases according to a forthcoming law review article by Lazarus a Harvard law professor joined with the side supported by environmentalists only 4 out of 38 times making him the justice least likely to do so and those votes came only in cases decided unanimously nevertheless Alito's biting tone in Dobs represented a significant change Steven Vladik a constitutional law professor at the University of Texas told me this was not a decision that is intended to convince anybody other than the folks to support its result and I don't mean convince them that Alito and the other conservative justices are right I mean convince them that they're principled oh my god that's so sad so Samuel Alito and Donald Trump Ted Cruz they're not out there trying to convince leftists that they have their own principles yeah it doesn't bother me if Sam Alito is not trying to convince leftists that he's principled Dobs revealed a block of justices who are increasingly untroubled by the declining public perception of the court because they think it's just pissed off progressives oh you mean there are justices now on the court who believe in doing what is right rather than being popular they could just frame it that way now of justices who are more interested in doing what is right than in being popular sounds good to me it's not just pissed off progressives since 2000 as a recent study in the proceedings of the National Academy of Sciences found the court is estimated to have moved to the ideological right of roughly three quarters of all Americans okay so when the court is to the left I don't recall left wing media wailing and gnashing their teeth that the courts have gotten out of touch with ordinary Americans passed all sorts of referendums such as 187 hence providing benefits to illegal aliens or amendment 2 in Colorado which gave people exemptions from anti-gay discrimination laws the will of the people has spoken left wing courts overturned it said it was unconstitutional I just don't remember I've read the news back then I don't remember a whole lot of wailing and gnashing of teeth that the court has you know fallen out of touch with regular Americans I don't recall the legal the legal although she was an evangelical Christian Meyers was further damaged by fears that she was not anti-choice enough she had once argued that self-determination mattered when it came to abortion Bush's nomination of his confidant also smacked of cronyism but according to Anne Southworth a law professor at UC Irvine who has studied the Federalist Society society, a major part of what tanked her is that she was not seen as having come up through the conservative legal movement. Robert Bork told NPR that Meyer's selection was a blow to a movement that's been building up for 20 years and now has a great many people who are qualified for the court, but all of whom have been passed over. Bush soon withdrew Meyer's nomination. Bush turned next to Alito, partly because Meyer's had recommended him. Still, when the men met at the White House, Bush found him as reserved as they come and ill at ease. For the previous 15 years, Alito had been a federal court of appeals judge on the Third Circuit. As he later recollected in an on-stage interview at Duke, his professional life in that role had been almost monastic. My days consist So, if the left controls institutions, if the left controls dominates the means of cultural production, then one would expect pure elite people to be right-wing. It's very hard to succeed in institutions that are dominated by left-wing ideology when you are right-wing. So to get the credentials that would impress the left, it would mean you'd have to go into enemy territory and drive there. Not easy to do. I'd drive to the office, walking up to my chambers, reading and writing, talking to no human beings except my assistants and my law clerks, getting back in my car, driving home and doing the same thing the next day. Every once in a while there'd be an oral argument, maybe once every six and a half weeks. Bush finally broke the ice with Alito by discussing baseball. Alito was such a Philadelphia Phillies fan that he had once spent a week at the team's fantasy camp, a Christmas gift from his wife, Martha Ann Alito, a former law library. They have two children, Phillip, a lawyer, and Laura, a marketing executive. Unlike Myers, Alito had an extensive judicial record that included abortion cases. Look, there are seasons in a man's life. So from about age 22 to 39, most men are incredibly intent on building their kingdom. Now a lot of big markers when I lived in Brentwood back then in the 80s, many were still Republicans, but culturally they were liberal today, the elite of Brentwood and 98 percent, Democrats as the chat. So I kind of think, oh wow, I almost lost my iPhone into the ocean. And I'm paying for everything with my iPhone here. Just use Apple Pay for everything. That would have been an absolute disaster. So yeah, Alice Armstrong talks about the seasons of a man's life. At 22 to 39 you're intent on building your kingdom and then you move into your, I think she calls it your prince stage, right? And the order of men get, you know, the more they want recognition and praise and you'll never work as hard as you did 22 to 39. That's when you're building your kingdom. After that you move into your prince and your king stage where you sit back and just want to rule your kingdom and you want to be recognized and you want to be praised and you want to be appreciated. At 22 to 39, which is probably the time period that Samuel Alida was talking about there, men typically are absolutely fixated on building their careers and that's normal, natural and healthy. As men move into their 40s and 50s they start making more time for their hobbies, their interests, their friends, their families. Pellet court judge, he was the sole dissenter in a 1991 case that struck down a portion of a Pennsylvania law requiring women with few exceptions to notify their husbands before obtaining an abortion. A year later, when the case made it to the Supreme Court as Casey, the justices decided that the spousal notification posed an undue, fully reassuring to conservatives was Alido's service in the Reagan administration's justice department. Under Edward Peace, he had attracted young lawyers itching to roll back abortion rights, certain protections for criminal defendants and affirmative action, which the administration portrayed as reverse discrimination against whites. Alido had joined the justice department in 1981, working in the office of the Solicitor General. Many of his colleagues were civil servants who didn't share his political views. Alido has said that he was initially a secret conservative. In 1985, he began slipping out of the office to attend monthly lunch meetings hosted by the Federalist Society. Yeah, if you think that most people ran your hostile to conservatives, then it would make sense that you would hide your conservatism. But when you feel safe, secure, confident, you're going to be more out with your conservatism. It's not just homosexuals who have to hide who they are. At a Chinese restaurant called The Empress, at one such gathering, he ran into Charles Freed, then the acting Solicitor General. Oh, what a surprise to see you here, Freed said. This is like meeting a friend at a bordello. Freed, now a professor at Harvard, told me that Alido had been a pleasant and cultivated colleague and a fine writer who helped him craft arguments for government cases before the Supreme Court. At the time, the Reagan administration was pushing the idea that affirmative action policies should have victim specificity, benefiting only individuals directly subjected to discrimination. Alido, Freed recalled, came up with some choice lines, such as, Henry Aaron would not be regarded as the all-time home-run king and he would not be a model for youth if the princess had been moved in whenever he came to the plate. Theraford failed. Yeah, ambitious men are likely to hide their concerns. I'm sorry to thank you, just the chat. They're in section Persian Jewish men because they have a healthy view of what it means to be their own man. That's true. Yeah, Persian Jews don't try to hide their maga or conservative arriving tendencies. In 1986, the court repudiated victim specificity, declaring the purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future. Yeah, and there's no evidence that there's ever significant discrimination. The reason that different groups get different life results is that they have different gifts. Employers weren't leaving millions of dollars on the table by being racially bigoted. Capitalism doesn't work their way. Persian women expect men to be willful and possible about their way and their opinions. I really like Persians, but Persian men and Persian women. While at the Solicitor General's office, Alito wrote a memo defending police officers right to shoot fleeing suspects regardless of the threat they posed. The case involved a 15-year-old black boy, Edward Garner, who, according to Alito's memo, was killed by a Memphis police officer who could see that his target did not appear to be armed. Garner was carrying a purse containing 10 dollars. An appellate court had upheld a civil rights case brought by Garner's father against the Memphis Police Department and city officials. The state of Tennessee was now appealing to the Supreme Court. Alito wrote, any rule permitting the use of deadly force to stop a fleeing suspect must rest on the general principle that the state is justified in using whatever force is necessary to enforce its laws. Yeah, I think I side with Sam Alito there. I think most of the time, as I grew up in a predominantly Ashkenazi family, some Sephardic ancestry, my family is mostly Ashkenazi, very little. I'm one of the few exceptions, and I take a lot of heat for this. I think most of the time when police shoot a fleeing suspect, the world is better off. Most police suspects who run away from police, not particularly righteous people, usually bad guys. Assuming that a fleeing felony suspect is entirely rational, what he is saying in effect is, kill me or allow me to escape, at least for now. If every suspect could evade arrest by putting the state to this choice, societal order would quickly break down. Yeah, I agree with Sam Alito. The majority view now among elites is that black people should not be arrested unless they consent to be arrested. But if they resist arrest, then police are not allowed to use any force whatsoever. They simply decline that. I don't think I want to be arrested today, then they should just leave them alone. The Supreme Court sided with Garner's father, writing for the majority, Justice Byron White declared, it is not better that all felony suspects die than that they escape. At the Justice Department, Alito also became friendly with Charles Cooper, a hard-line conservative deputy in the civil rights division. Fling suspects shouldn't think twice about shooting anyone in the back and carjacking them cops should be allowed to. Yeah, we're talking about super-predigitacy, we're talking about many bad guys. Alito on the Supreme Court, Cooper argued against same-sex marriage. In 1985, Cooper was asked until the Justice Department's Office of Legal Counsel, and he urged Alito to apply to become his deputy. Alito pursued the position, candidly declaring in a memo, I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration. He even tried to write commentary for right-wing magazines, though his submissions to outlets such as National View and the American Spectator were rejected. In the memo, Alito noted that he was particularly proud of my contributions in recent cases, in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed, and that the Constitution does not protect a right to abortion. Alito got the promotion. Among the Reagan administration policies that he helped promulgate was one shielding employees who fired people with AIDS because of fear of contagion, whether reasonable or not. In 1986, Alito told the Washington... Yeah, boy. Elliot laughed. It was pretty sad that that wasn't held up, right? So, someone's got a deadly disease. Like, you should be legally forced and not discriminated against them in any way. Like, if someone's got like nasty postures on their face, you're not allowed to discriminate against them. Like, it just simply makes you uncomfortable, creeps you out, right? What about the, you know, the threat of some accident and their blood tripping fall in the workplace, transmitting HIV? I think people should be able to hire who they want, for whatever reason, because there should be a sense of comfort in the workplace. Workplace is going to be much more efficient if people are comfortable there, right? Your team is going to do much better work. Everyone's going to be happier if you're comfortable with the other people in the office. Los Angeles, there are 4,000 places on duty at any time. There are at least 100,000 gang members. That's only a fraction of the bad actors on the streets of LA. Yeah, good point. That's why I probably wouldn't stand here in LA. They're just not more bad guys, out to do mischief. But Sydney's one of the safest big cities on the wall. Absolute pleasure to be here. We certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands. And extant laws did not regulate what a private employer can do if he has a fear of a contagious disease. A liberal former colleague of Alito's from the Solicitor General's office told me that in the 80s, Alito had seemed like an establishment Republican, someone who wouldn't put ideology above the proper functioning of the system, which I thought Steri DeCises was a big piece of. So, no, I haven't seen any crack houses in Sydney. Most baddies are priced out. Yeah, they can't afford the eastern suburbs. So, people on the eastern suburbs, they talk about western Sydney, right? Like inland, like it's a dangerous, wild west kind of place. So, yeah, on the eastern suburbs of Sydney, their housing prices discriminate, so you don't have to. Steri DeCises, Latin for let the decision stand is the doctrinal preference for upholding precedence. The colleague observed, the SG's office maintained a kind of cult of smartness. You couldn't be thinking too weirdly. There was this elite meritocracy that we thought dissolved hard ideological tensions. These assumptions now struck the colleague as naive. Yeah, of course, there are going to be ideologies, even when the emphasis is on competence. You can't live without a hero system. You can't live without some way of conceiving of yourself as heroic. And that means loyalty to a particular community, or to your own greatness. There's no, you know, non-ideological approach to the law. Oh, was always very tightly wrapped, he recalled, adding, I now wonder what he was thinking all those times he didn't say anything. At Alito's Supreme Court confirmation hearings, he performed with steely equanimity. Andrew Napolitano, his former college classmate told the Princeton alumni weekly that he knew Alito would maintain his composure, joking he doesn't have a temper to lose. Alito said all the things about Roe and Casey that anti-abortion jurists must say to ensure confirmation. He called Steri DeCises a fundamental part of our legal system. When Senator Arlen Specter, a Republican at the time, asked him if Casey qualified as a super precedent, he responded with a wan witticism. I personally would not get into classifying precedence as super precedence or super duper precedence or any sort of categorization like that. It sort of reminds me of the size of laundry detergent in the supermarket. I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent. Oh, just imagine Sam Alito said the things he needed to say to get to the places he wanted to go. Unbelievable. Alito said that his Reagan-era assertion that the Constitution didn't guarantee a right to abortion was merely what I thought in 1985 from my vantage point in 1985. He told the Democratic Senator Chuck Schumer that if the abortion issue came before him on the court, it would first apply Steri DeCises. If he got beyond that, he would go through the whole judicial decision-making process before reaching a conclusion. When Schumer asked if he still doubted that a right to abortion could be derived from the Constitution, Alito deflected by protesting, you are asking me how I would decide an issue. Alito acknowledged that he held traditional values but in the mildest terms. He said that he believed in defending the ability to raise children the way you want and in students' right to express their religious views at school. Some of Alito's supporters from this period now wonder how much of the tepid persona he projected back then was genuine. Oh, this is shocking. Absolutely shocking. He projected the persona that he thought would be most effective. Most of us do that. Most of us project a persona in a job interview that's not necessarily 100% authentic to how we're going to conduct ourselves at work. And employers in a job interview don't present the job the way that's 100% authentic to what the job will actually be. Okay, I'm going to resume my hike to Botany Bay. Talk to you later.