Bill Kristol Interviews Justice Samuel A. Alito

Bill Kristol, editor of The Weekly Standard, interviews Supreme Court Associate Justice Samuel A. Alito as part of Mr Kristol's interview series, Conversations With Bill Kristol. Justice Alito discusses his education, including studying at Yale Law School, thinking about the theoretical legitimacy of Supreme Court decision-making and an interesting assessment of the Warren Court as an "untheoretical Court"; the work of the Court, including the relevance of Oral Argument, how the Justices decide and write cases, and the importance of clear decisions; dissenting in three recent free speech cases; marriage equality and dissenting in Obergefell v. Hodges, including discussion of the problem of the Court basing the decision in substantive due process; and baseball. 

It is an in-depth and interesting interview that gives insight into how Justice Alito thinks about the Court, his job and some issues the Court has faced recently. The following are some particularly interesting excerpts from the interview:

On Oral Argument

32:40 [Oral arguments] can make a difference....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 re-think 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 Deciding Cases

48:50 [Voting] is different from what I imagine takes place and is considered 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 is considered to be unethical behavior by a legislator. But, on a court, you can't...that's improper and I don't know of any instance of where it's been done. So, you can't 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 of the hardest things for an appellate judge—it was hard when I started and it's still hard sometimes—is to figure out how far you should bend before you say, "I can't go any further." So, if someone circulates a majority opinion and its 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 go any further."

On the Importance of Clear Opinions

51:00 As a former consumer of Supreme Court opinions, when I was on the Court of Appeals, what I wanted and what I think all the lower court judges want, what all the...what parties want, what lawyers want is a pretty clear rule. So, it is nice to have a majority opinion. It's difficult when you have to put together opinions and try to figure out what the holding 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 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 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 is hard to sign on to something that is enthusiastic about a position that I thought was incorrect.

On Dissenting in Recent First Amendment Cases

US v. Stevens (animal crush and dog fighting videos). 
Snyder v. Phelps (protests at military funerals). 
US v. Alvarez (the Stolen Valor Act and misrepresenting winning the Congressional Medal of Honor).

At 55:50, Justice Alito describes the facts of the cases. 

1:02:53 Those cases involve a diversion, I think, of attention from the core, from what is most important about the guarantee of freedom of speech. 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 cruelty, the protests at military funerals, falsely claiming to have won the Congressional Medal of Honor, don't involve anything like that. And, if we loose focus on what is at the core 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.

In the cases that we've had that I think involve core free speech—the chief example I would give from my time on the Court is the Citizens United case—the Court that came out 5-to-4 protecting the right to freedom of speech but it was 5-to-4 and it remains very former colleague, John Paul Stevens, has written a book recommending a number of Constitutional amendments to correct the decisions he really disagreed with during his time on the Court and that's one of them...he wants an amendment to 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 is. So on these...on things that are at the core, the Court has been shakier than it has been on these things that are at the periphery.

On Disseting in Obergefell & the Jurisprudential Problem of Substantive Due Process

1:09:45 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 Court's 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 tried to either kill off Substantive Due Process complete or to relegate it 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 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. And for libertarians and classical liberals it does include the protection of economic rights and property. For progressive social Democrats it includes the protection, a right, liberty means the freedom from want, etc, etc, government benefits. And there are many other conceptions. 

The Court's conception, I said, in this opinion, and I believe to be true, is sort of a, is a very post-modern idea. It's the freedom to define your understanding of the meaning of life.'s the right to self-expression. 

So, if all of this is on the table, how...where are the legal limits on it? If a libertarian is appointed to the Supreme Court, it is then proper for the libertarian to say, "Well, I think that there is a right to work for less than the minimum wage. I think there is a right to work as many hours as I want without being limited 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, can the socialist say, "I think that liberty in the Fourteenth Amendment means that everyone should have a 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 [Chief Justice William H.] Rehnquist era, prominently a case called [Washington] v. Glucksberg, which involved 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. So, you had to find a strong historical pedigree for this right. But, the Obergefell [v. Hodges] decision threw that out. It did not claim that there was a strong tradition of protecting the right to same sex marriage. This would have been impossible to find. 

So, we are at sea, I think. I don't know what the limits of substantive liberty protection under the Fourteenth Amdnement are at this point. 

1:14:20 ...Where do we get the authority to impose what we think about same sex marriage or what we think about the 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 ascertainable, if it's just whatever I as an appointee to the Supreme Court happen to think is very important. So, I don't raises 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 will become like an election or will become like a political process. 

[Note: There is a very interesting connection here to Justice Alito's discussion at the beginning of the interview about discovering an interest in law—in particular the question of how a Constitutional decision would be legitimate if not "based very clearly on the text of the Constitution or something else that was fixed."]