Justice Alito: Dobbs, A Color Blind Constitution, And The Balancing Of Power

In this wide-ranging conversation, Supreme Court Associate Justice Samuel Alito discusses the principles that guide his judicial philosophy. From his majority opinion in Dobbs v. Jackson to his views on originalism, precedent, and the role of the courts in American democracy, Alito offers a candid defense of the Constitution as a fixed and enduring document. He explores the meaning of the Equal Protection Clause, the limits of judicial power, and the tensions surrounding race-conscious policies. Justice Alito also reflects on the practical realities of the Court and the deeper meaning of constitutional interpretation, speaking with clarity, conviction, and with an eye toward the long view of American jurisprudence.

Recorded on June 6, 2025.

Episode Transcript

(00:00):
[MUSIC]

>> Peter Robinson (00:09):
Welcome to Uncommon Knowledge, I'm Peter Robinson.
Associate Justice of the United StatesSupreme Court, Samuel Anthony Alito Jr.
grew up in New Jersey, earned hisundergraduate degree at Princeton, and
then earned his law degree from Yale.
He began his legal careeras an Assistant U.S.
attorney in New Jersey, then served in theReagan Administration, first as Assistant

(00:30):
to the Solicitor General and then asDeputy Assistant to the Attorney General.
Have I got that right?

>> Justice Samuel Alito (00:35):
Yes.

>> Peter Robinson (00:36):
Excellent, in 1990, President George H.W.
Bush appointed him tothe Third Circuit Court of Appeals.
Fifteen years later, President GeorgeW Bush nominated Justice Alito to
replace retiringJustice Sandra Day O'Connor.
Justice Alito is now third inseniority on the Supreme Court.
[COUGH] Justice Alito and I will not betalking about cases before the Court that

(01:00):
would violate every protocolat this institution.
But Justice Alito has beenkind enough to offer this
layman a tutorial in how to thinkabout constitutional issues.
Mr. Justice Alito, thank you forinviting us into this.
This is the West Conference Roomof the Supreme Court Building.

>> Justice Samuel Alito (01:19):
Well, welcome.
It's a pleasure to have this opportunity.

>> Peter Robinson (01:25):
The notion of a restoration.
Here's this layman's first question.
The Warren Court, which is the SupremeCourt under Chief Justice Earl Warren,
who served as chief from 1953 to 1969.
Let me quote legal scholarDaniel Frost quote,
Chief Justice Warren isremembered primarily for
extending rights to the weak,the disenfranchised and the oppressed.

(01:49):
But even his admirers are not entirelycertain the Constitution authorized
him to do so.
Then, beginning in the 1990s,
I'm putting this to you to see if Ihave the basic point here correct.
Beginning in the 1980s or so,there arises a school that reasserts
the importance of the originalmeaning of the Constitution.

(02:09):
A school we now call,loosely, originalism.
I believe you've called yourselfa modified originalist.
We can come to those modifications.
Let me quote the lateJustice Antonin Scalia.
Quote, the Constitution is nota living organism, for Pete's sake.
It's a legal document.
And like all legal documents, it sayssome things and it doesn't say others.

(02:34):
So would it be correct to saythat the originalist school does
not see itself as a new school ordoctrine of interpretation,
but as a group of like minded scholars and
lawyers who are engaged in whatthey see as an act of restoration.
Is that a fair summary?

>> Justice Samuel Alito (02:55):
I think that is a fair summary.
I think that the review of historythat you provided is a fair one.
A very sympathetic biographerof Chief Justice Warren said,
and obviously I can't quote directly,but from memory.
But he said thatChief Justice Warren had such strong

(03:19):
views about what was good andright and beneficial for
society that he didn't thinkthose things were disputable.
And that was embodied in a lot of the workthat was done during the Warren years.
Sometimes it produced tremendous results,like Brown versus Board of Education.

(03:41):
Sometimes the results were more debatable.
And when the Warren era ended,scholars looked back, and
I think they struggled to tryto find a principled basis for
the decisions thatthe Warren Court had handed down.
So that inaugurated a periodof debate about how

(04:05):
the Constitution should be interpreted.
Justice Scalia, Judge Robert Bork, whowas then a professor at Yale Law School.
Ed Meese, later, when he becamecounselor to President Reagan and
Attorney General, were, I think, the threepioneers of this originalist movement.

(04:27):
And what they argued is basicallythat the Constitution is a text and
it should be read basicallythe way other texts are read.
We read the words, they're understandable.
The English language hasn't changedthat much since the late 18th century.

(04:47):
We can figure out what it means,where it refers to legal concepts,
established legal principles.
We can explore what they wereunderstood to mean at the time, and
that's the way it should be interpreted.
So it was an effort to providea structured, disciplined, and
restrained way of readingthe Constitution.

>> Peter Robinson (05:08):
And this is the part on which this layman is especially fuzzy.
Is it the contention of the originaliststhat Chief Justice Taft
would have understoodexactly what they were about.
That there's a continuity betweenthe originalist school and

(05:28):
the fundamental canons of interpretationthat preceded the Warren Court.
And that it's the Warren Court that isin some way not the Warren Court alone.
You get the Burger Court,that follows some of the trajectories.
That there's a period of three decades orso
that departs from sensibleunderstanding of the text.

(05:49):
Is that roughly correct, that originalismis in continuity with the understanding
of the Constitution thatprevailed before the Warren Court?
I'm putting things crudely,but that's the best I can.

>> Justice Samuel Alito (06:01):
I think the core idea there is correct.
But I think it should alsobe said that the whole idea
of constitutional theory,which is now a very developed
school of thought amongconstitutional scholars,

(06:21):
was not prominent beforethe originalists came along.
There was much less theorizing about howthe Constitution should be interpreted.
So I do think that the pioneeroriginalists would say that what they were
doing captured the essence of a lot ofwhat happened after the founding and

(06:43):
through the 19th century.
But if you go back andyou will not find the the kind of
theoretical discussionthat has come after that.
I once did a search through law reviewsfor the term constitutional theory,
and it was not used that muchuntil some point in just

(07:06):
about the turning pointthat you mentioned,
the late 1970s, early 1980s.
Then it went up and now, of course,there's a lot of scholarship about it.

>> Peter Robinson (07:18):
I see, all right.
So this brings us to, I have thisorganized in my head is about four
major concepts or questions foryou, Justice Alito.
Stare decisis, which is,of course, is the legal principle,
if we're engaged in active restoration,what are we permitted to restore So
we have to address,as best I can work it out, stare decisis,

(07:40):
the principle that courts mustbe bound by previous decisions.
Two quotations.
I've already read you the quotationfrom Daniel Frost that even
Justice Warren's admirers are notentirely certain the Constitution
authorized him to produce someof the decisions he produced.
Here's, Retired Supreme Court JusticeStephen Breyer stare decisis does not

(08:04):
exist simply to protect precedent thatis right,it keeps the law stable by
preventing the continuous reexaminationof precedent that may well be wrong.
The fact that judges thinkan earlier case was incorrectly
decided cannot be and never hasbeen a strong basis by itself for

(08:24):
overruling an earlier case close quote.
Which, of course reminds me of the oldsaying by G.K chesterton that it's the job
of progressives to make mistakes and thejob of conservatives to keep them from.
To prevent them from being corrected sowhen does this Court feel
bound by precedent, even if it mayhave some notion that the precedent

(08:46):
was incorrectly decided andwhen does it come to the conclusion?
When may it properly come tothe conclusion that a decision was so
incorrect that the Court must overturn it?

>> Justice Samuel Alito (08:59):
Well, there's a variety of thinking on the question among
the members of the Court now andin past years Justice Thomas is most
willing of all the Justices, mostwilling to reconsider past precedents.
If he thinks the pastprecedent is clearly wrong,

(09:19):
he is more open to a reexamining it than,let's say, even Justice Scalia.
When Justice Scalia was on the Court,
he was certainly in favorof reexamining egregious
decisions under appropriate circumstances,

(09:40):
but he did not think thatit would be workable.
I don't think I'm putting wordsin his mouth,i don't think he
believed it would be workable for
us to reconsider every past decision thatfigures in a case that comes before us.

>> Peter Robinson (09:58):
Right so actually, I once interviewed Justice Scalia,
and he brought up Marbury versus Madison.
He said, suppose we're hearing a case,and the justice says, now, counsel,
why do we have the right to even considerwhether we should overturn this?

>> Justice Antonin Scalia (10:15):
Do you think we have the power to ignore a statute enacted
by Congress simply because,in our view, it's unconstitutional?
He says, yes, your honor you knowMarbury versus Madison,I know,
I know, Mark, but was it right let'srethink that you can't run a legal
system that way reinvent the wheelevery time you have a new case.

(10:38):
All right, so that's>> Justice Samuel Alito: that is what
he thought and it really brings to mindsomething that occurred during an oral
argument in a case called McDonald,
which had to do with whetherthe Second Amendment right to keep and
bear arms applies to the states andin that case, to the City of Chicago.
Without getting into the technicalities,whether or

(10:59):
not it applied depended onan interpretation of the 14th Amendment.
And there are two provisions of the 14thAmendment that could govern one is
the Due Process clause, which is the waythe court has analyzed this issue for
more than 100 years well,more than 100 years.
And the other is the Privileges andImmunities Clause and

(11:20):
a lot of scholars think the Due ProcessClause was the wrong path it should have
been the Privileges and Immunities Clause.
And in this case,that's what the lawyer for Mr McDonald,
who wanted to have the gun, was arguing.
And that position was supported bygroups across the ideological spectrum,
including libertarians on the one hand andprogressives on the other.

(11:46):
And we got a brief from somelaw professors who said,
we look forward to the day when we cantell our students that the Supreme Court
has corrected its mistake.
So the lawyers started to make thisargument, and Nino cut him off,
and he said, that argument isthe darling of the professoriate, but

(12:06):
you have 100 years of precedent, soget on to the rest of the argument.
It was very telling because Ninowas such a professor, I think,
in his heart, through his entire career,but he recognized that
deciding cases is different fromwriting law review articles.

>> Peter Robinson (12:28):
All right, well, this brings us we're still under stare decisis
this brings us to 2022 and Dobbs versusJackson Women's Health Organization,
in which the Supreme Court overturns,explicitly overturns Roe vs
Wade of 1973 andPlanned Parenthood vs Casey of 1970, 1992.
And I'm sitting across fromthe justice who wrote the decision for

(12:51):
the majority quote,
roe was egregiously wrong from the startits reasoning was exceptionally weak.
And far from bringing about a nationalsettlement on the abortion issue,
Roe and Casey have deepened division wehold that Roe and Casey must be overruled.
So if I'm spotting this correctly,you've you presented in that couple of

(13:15):
sentences three different criteriawas the decision egregious did
it bring about any kind of nationalsettlement has it been is it settled law?
And then the reasoning itself within well,of course that's egregious,so we
have at least two was it egregious andeven whether it was egregious or not,

(13:36):
is it now settled law and in both cases,Roe fails have I got that right?

>> Justice Samuel Alito (13:40):
Yes and those are two prominent criteria that I think we
need to examine when we consider whetherwe're going to overrule precedent,
which we do quite, quite sparingly.
But if it's egregiously wrong,if it has made a big practical difference,
has it settled things orhas it left things in an unsettled state.

(14:01):
Those are certainly all considerationsthat we have to take into account.

>> Peter Robinson (14:05):
All right, the topic of race,and if you'll permit me,
I'm going to try to run through somehistory here, a few bullet points.
When the constitution is ratified in 1788,of course it gives the famous three fifths
clause so that African American slavesare counted as only 3/5 of an individual.

(14:25):
But it also gives Congress the powerto end the importation of slaves,
the international slave trade in 1808.
And Congress does exactly thatthe first chance it gets It ends
the international slave tradeafter the Civil War the 14th
Amendment forbids states from denyingcitizens the equal protection of the laws.
And then the 15th amendment declares theright, quote, to vote shall not be denied

(14:49):
on account of race, color orprevious condition of servitude.
We get the Jim Crowregime of the 1960s and
then we get the Civil Rights act of 1964,banning discrimination based on race and
employment, public accommodations andelsewhere.
So the layman skimming throughthe history says the founders wanted to

(15:09):
get rid of slavery the founders wereuneasy about race from the very get go.
We see the way they handled it,I would,
even if I could quote it from memory,I would I can't.
Frederick Douglass referred to the threefifths clause as scaffolding that
permitted the rest of the structure ofthe constitution to be erected, but

(15:32):
that was to be removed atthe first opportunity.
Again and again in our history,we get the assertion, no,
we are not going to make judgments amongour fellow citizens based on race.
Then in 1978, which, let's face it,is a long time after the civil war and

(15:55):
the civil rights legislation,the Bakke decision, the supreme court.
Supreme Court holds thatuniversity policies could still
take race into account.
And then in 2003, in Grutter, Grutter.

>> Justice Samuel Alito (16:07):
Grutter. >> Peter Robinson
the Court upholds the use of race inuniversity admissions once again.
So if I may, we'll come to Students for
Fair Admissions versus Harvard in amoment, the case that got decided in 2023.
But I look at this history, again,this is the layman thinking,

(16:27):
I have no legal training at all.
And it looks to me as though,the Court, on occasion in Dred Scott,
the Court upholds racialdiscrimination with a snarl.
The voice of Chief Justice Taney sayingthat African Americans do not have rights
of the same kind as white men.
Or as in Grutter, the Court says it inthe nicest possible way, Chief Justice or

(16:52):
Justice Sandra Day O'Connor decision,quote, we expect that 25 years from now,
the use of racial preferenceswill no longer be necessary.
We don't like it, but forthis moment, but in both cases,
the Court is continuing to say,all right, we find making discriminations
among our fellow citizens on the basisof race to be constitutional.

(17:17):
Why does this, it seems to me tobe just as a historical matter,
an unusually vexing matter.
It comes before the Court again andagain and again.
The court, in the 20th century, the courtis unhappy with it, but still permits it.
Well, the Court's record on race has been up and down,

(17:38):
and that's similar tothe country as a whole.
The slavery and racial discriminationwas the great flaw that was built into
our constitutional system at the startwith the three fifths clause, the clause
that you mentioned about allowingthe slave trade to continue for 20 years.
And it has taken us a long timeto work through these problems.

(18:04):
So, the Court was horrible andDred Scott, of course,
may have contributed tothe outbreak of the Civil War.
Then along came a casecalled Plessy vs Ferguson,
1896, at a time when social Darwinism and
sort of scientific racism amongthe elites was at its peak.
And the Court said that racialsegregation was constitutional.

(18:32):
The first Justice, Harlan,John Marshall Harlan,
wrote the best dissent in the wholehistory of the Supreme Court in that case.
In Plessy.
Yes, in Plessy, where he said that,
in our country there's no superior race,there are no castes.
The Constitution is colorblind,he was all alone.

>> Peter Robinson (18:50):
And he was a Southerner, as I recall.

>> Justice Samuel Alito (18:52):
He was a Southerner and
he came from a slave owning family.
But he was courageous andmade that argument,
which of course was true andhas stood the test of time.
And the Court finally,overruled in effect, Plessy and
Brown vs Board of Education, 1954.

(19:13):
We saw the reaffirmation ofthe same principle that Harlan had
articulated in Plessy in Dr.Martin Luther King Jr's famous speech
at the Washington Monument,which everybody should be familiar with.
I look forward to the day when my littlechildren are judged not by the color of

(19:34):
their skin, butby the content of their character.
But then in Bakken,the court did some backsliding,
and I think it was well intentioned.
It was perhaps thought that this wassomething that should be done for
a period of time to try to get overthe after effects of a long period

(19:55):
of segregation and discrimination.
But the precedent lasted andit metastasized,
and I think it came to dogreat damage to our society.
So it was important to correct itin Students for Free Admissions.

>> Peter Robinson (20:15):
Let me, if I may, on that case, set it up.
2023 Students forFair Admissions versus Harvard,
in taking race into account in admissions,the court found Harvard
violated the 14th Amendment andthe Civil Rights act of 1964.
Chief Justice Roberts writes forthe majority, quote,
eliminating racial discriminationmeans eliminating all of it.

(20:41):
How do we understand thatin relation to Grutter,
that the court decided itcouldn't wait 25 years?
Is that a rebuke of Grutter,that Grutter was incorrectly decided?
In other words, as best I can tell, oneneeds to understand what the court meant
in relation to Grutter to understandwhere the court goes from here.

>> Justice Samuel Alito (21:02):
Well, I can only speak to myself on that point,
I think Greta was wrong,I think Bakke was wrong,
I think that ourconstitution is colorblind.
I find it hard to see how we'regonna hold together as a country and
a country with people of every race andevery ethnicity.
How are we gonna hold togetherif we don't regard each

(21:24):
other simply as fellow human beings,as fellow Americans,
and judge people based on theirindividual characteristics?
So I think the whole paththat the constitutional
law took from Bakke until Students for
Fair Admissions was a mistake.

(21:46):
As I said, I think some people may havethought this is something we should do
on a temporary basis.
That was the flavor of Justice O'Connor'sopinion, but I think that was a mistake.

>> Peter Robinson (21:58):
Well, so,
justice leader, if I may, to put youjust made a very striking assertion,
which is that you believethe Constitution is colorblind.
That it if I may probe that a little bit,I suppose that means it is
unconstitutional in some large portionof the realms in which we live,

(22:18):
professional life, public accommodation,politics, in various forms.
It is unconstitutional for
us to draw distinctions among our fellowcitizens on the basis of race, full stop.

>> Justice Samuel Alito (22:32):
Yes, absolutely.
I think that's the core principle withthe equal protection clause on the 14th
Amendment.
And I think it's essential forthe well being of our country.

>> Peter Robinson (22:41):
What work needs to be done to make the fair admissions case,
the permanent place it ona permanent footing, so
the court doesn't backslide again,if you see what I mean.

>> Justice Samuel Alito (22:56):
Well, I hope the court will not backslide.
I don't think we will backslide, but
I think that much litigationis probably gonna be necessary
to enforce this principle becausethere are a lot of people
who disagree with it andwill look for ways to get around it.

(23:17):
In the last two terms,we've had two cases that illustrate this.
And if you have a second forthem, they're both
cases involvingthe admissions criteria for
public charter schools, one here inthe DC area, three up in Boston.

(23:41):
These are schools with very highacademic standards, very tough
admission standards based mostly onperformance on a standardized test.
And the students, Asian-American students,
did disproportionately well on theseadmission tests and therefore constituted,
A percentage of the school populationin both instances, that well exceeded

(24:06):
their population in the school district orin the municipality in question.
And in both cases, the school boardsdecided to change the criteria for
the express purpose of bringingabout better demographic balance,
bringing down the numberof Asian-American students.

>> Peter Robinson (24:27):
Racial or ethnic balancing?
Explicitly.

>> Justice Samuel Alito (24:30):
Yes, and the 4th Circuit, and the 1st Circuit,
4th Circuit covers Virginia and
states to the south,the 1st Circuit is up in New England.
Those courts both said this is okaybecause even after the change in
the admissions policy,the percentage of Asian-American students

(24:51):
admitted to these schools is higherthan their percentage in the population,
and that makes it constitutional.
I think that's clearly wrong, I said soin opinions urging the court to take
the cases,the court refused to take the cases.
But that's the kind of thing that is gonnacome up, I think, again and again and

(25:12):
again, because there's a lot of resistanceto the principle that the court
adopted in students for fair admission.
And it's up to the lower federalcourts to apply that decision,
and if they don't do it,then I think we're gonna have
to intervene as many times as isrequired to drive the point home.

>> Peter Robinson (25:32):
I see.
Freedom of speech and religion.
First religion, this is you speakingat Notre Dame a couple of years ago.
Notre Dame University, quote, freedom ofworship means freedom to practice religion
in the privacy of your home or in yourchurch or your synagogue or your mosque.
But when you step outside intothe public square in the light of day,

(25:56):
you had better behave yourselflike a good secular citizen,
that's the problem we face.
Explain that.

>> Justice Samuel Alito (26:03):
Well, I think it is the problem that we face because
support forreligious liberty unfortunately,
has cratered in the last 20, 25 years.
The high point, I would say, was 1996,
when Congress passedthe Religious Freedom Restoration Act.

(26:24):
Congress was upset that a decision on theSupreme Court had not gone far enough to
protect religious liberty, sothey stepped in and they said, no,
we're gonna do more,we're gonna provide more protection.
That law, RFRA passed witha voice vote in the House,
in the Senate, 97 votes,signed happily by President Clinton,

(26:47):
that's the state of the situation in 1996.
2015, the state of Indiana tries and
enacts virtually an identical law,and there's furious opposition.
The NFL, the NBA, the WNBA,the NCAA all threatened
they're going to pull gamesout of Indiana States said,

(27:08):
we're not going to allow any officialtravel to conferences in Indiana.
So the support has decreased,but I think that protection of
religious liberty is requiredby our Constitution.
And it's again like equality,it is essential for
the well being of the country.

>> Peter Robinson (27:29):
Two quotations, the First Amendment itself,
Congress shall make no law respectingan establishment of religion.
And here's the second quotation,since you spoke at Notre Dame,
I'm quoting the Notre Dame professorPhil Munoz writing just last year.
The founders understood religiousinstitutions have an important, arguably

(27:50):
essential sounds like Justice Alito roleto play in supporting American democracy.
Government cannot and ought not beneutral toward religion, this is why
religious liberty is and must remainAmerican's first freedom, close quote.
Okay, so this layman, I'm personallytotally in sympathy with Professor Munoz,

(28:11):
but the language of the First Amendmentsays Congress shall make no law
is respectingan establishment of religion.
This was in the days of course,when Virginia had an established religion,
the Anglican Church and the Puritan,various Congregationalist churches,
I recall, was established in Connecticut.
And on it went, Congress shall make nolaw respecting establishment of religion,

(28:34):
which is to say Congress won't imposea state religion, that's one matter.
Phil Munoz is arguing, well,
the founders understood that weactually need to support religion,
I don't mean to put words in his mouth,but that's the way I read that passage.
There's a tension there,is there not or am I misreading this?

>> Justice Samuel Alito (28:51):
Well, the two clauses need to be read together and
they do seem to move insomewhat different directions.
The establishment clause is verytricky because it's hard to
understand exactly what isan establishment of religion,
the core is what you mentioned,having an established church.

(29:12):
But it's been long agreed, and
I certainly agree thatthe prohibition goes beyond that.
What we have done, and I think we've takenthe right approach to this in recent
years, is to look to history, and
history is very informative about whatwas permitted, what was viewed askance.
On the free exercise clause,it is very important to note that

(29:36):
the Constitution singles out religion forfavorable treatment.
Congress shall make no lawinfringing the freedom of religion,
it doesn't say what the French Declarationof the Rights of man said in 1789,
just about the same timeas our First Amendment.
They said, no one shall be disquieted,

(30:00):
I think disquietedbecause of his opinions,
including religious opinions.
So it protected philosophical views,
it protected views that werenot based on religion but
on something else that peoplemight think is very important.

(30:22):
But our Constitutionsingles out religion and
gives it a higher,it gives it protection that is not
afforded to views thatare not religiously-based.

>> Peter Robinson (30:35):
And what work needs to be done there?
If public I can't remember whoit was who said that it's fair
to expect the judicial system toignore the politics of the day,
but naive to expect the judicialsystem to remain unaffected

(30:56):
by the politics of the era,something like that.
And if public support for religion, publicpractice of religion, if the support,
as you just said, is cratering,what can the court do over the long-term?

>> Justice Samuel Alito (31:08):
Well, I think we have to stand up for the Constitution,
there's a reason why we're not elected.
We are not supposed to do what is popular,we're supposed to do what is right,
we're supposed to interpretthe Constitution and
figure out what it means andthen apply the Constitution.
That's the purpose of this institution,

(31:30):
the core purpose of this institution,to prevent society at times.
We're basically a democratic country,but the framers want to put some
restraint on things that people mightdo during a particular area, because
they're caught up in the emotions thatare triggered by the events of the day.

(31:51):
So we have to stand firm on this, and
I think we have done a pretty good job onit, but we have to keep it up because,
Challenges will,challenges will continue to come.

>> Peter Robinson (32:06):
Speech, again, the First Amendment,
Congress shall make no lawabridging the freedom of speech.
And here is Justice Alito in an interviewwith the Wall Street Journal last July.
The First Amendment was not intendedto prohibit any regulation of speech.
All right, can you explain that one?

>> Justice Samuel Alito (32:25):
Yes, it refers.

>> Peter Robinson (32:27):
I have a feeling you could [LAUGH].

>> Justice Samuel Alito (32:30):
It refers to the freedom of speech and
the freedom of speech is a phrasewith an established meaning,
a phrase that had an established meaningwhen the First Amendment was adopted.
The same is true of the Second Amendment,the right to keep and bear arms,
as Justice Scalia says, said in hisopinion in Heller for the Court.

(32:53):
That was a right that was understoodat the time to have certain dimensions.

>> Peter Robinson (32:57):
These are both historically accessible to us today.

>> Justice Samuel Alito (33:00):
Yes, they are and so it was understood at the time when
the First Amendment was adoptedthat there is no right, for
example, to threaten people.
Those are words butyou don't have a right to threaten people,
you don't have a right to defraud people,you don't have a right to defame people.

(33:20):
So there was no right,the freedom of speech was not then and
still is not interpreted to protectwhat is defined as obscenity.
So there were well established limitson historically established limits on
the right.

>> Peter Robinson (33:40):
I see, All right, from your 2020 remarks to
the Federalist Society, quote,one of the great challenges for
the Supreme Court going forward willbe to protect freedom of speech.
Although that freedom is fallingout of favor in some circles,
we need to do whatever we can toprevent it from becoming a second tier

(34:01):
constitutional right.
And again,there are nine of you on the Court,
you've already made it clear that lifetimeappointment, what is there for a purpose?
The wider originalist movement, what kindof work needs to take place in the law
schools, in the legal journals, andamong scholars who know each other,

(34:22):
what kind of support doyou need on the Court?

>> Justice Samuel Alito (34:26):
Well, we need all the support that we can, all the support
that we can get, I do think you referto the colleges and the law schools.
What is going on thereshould ring some alarm bells
because freedom of speech is notprotected in colleges and universities.

(34:52):
There are a lot of speakers who sayunpopular things are disrupted,
when I talk to recent law graduates,law students,
they say if they're conservatives,they say,
I didn't feel free to speakout when I was in law school.
I had to watch everything that I said,
I was afraid that I was gonnabe harassed or intimidated.

>> Peter Robinson (35:16):
Clerks.

>> Justice Samuel Alito (35:16):
Yes.

>> Peter Robinson (35:17):
So these are kids from the best law schools in the country who
presumably, if they make it to a personalinterview with you, whip smart,
tough, resilient, and even theysay they didn't feel free to say.

>> Justice Samuel Alito (35:32):
No they make it through, but they exercise a degree
of prudence about what they will say andwhere they would say it.
That's not what law school, and it's notwhat a university is supposed to be about.
It's supposed to be a place where peoplecan speak freely and test out their ideas.
So that's one thing that's alarming,

(35:54):
some of the restrictions that were placed
on expression by socialmedia a few years ago.

>> Peter Robinson (36:05):
Yes, during COVID.

>> Justice Samuel Alito (36:07):
Very, very alarming, we had a case last
year called Murphy, which I dissented.
I thought the court missedthe boat in the case, but
it involved very intense White Housepressure on Facebook to trim
what was said particularly about,about COVID the origin of the virus and

(36:32):
the safety of the vaccines andmasking and social distancing.
They put a lot of pressure onFacebook not to depart from
the position that the governmentwanted to promote.
That's very dangerous and interestingly,Mark Zuckerberg later has said

(36:55):
that he regrets that they gave in to thegovernment pressure as much as they did.
So that's something that wehave to be concerned with going
forward manipulation of social media.

>> Peter Robinson (37:10):
Justice Alito, originalism itself.
Original meaning or originalism and
I'm gonna work my way to your positionbecause you've called yourself,
I think you called yourself a practicaloriginalist and a modified originalist,
I found in different interviews,you put it slightly different ways.
A couple of quotations, here's yourfriend, the late Justice Antonin Scalia.
Quote, the Constitution that I interpretand apply is not living but dead, or

(37:33):
as I prefer to call it, enduring.
It means today not what current society,much less the Court,
thinks it ought to mean, butwhat it meant when it was adopted [COUGH].
Retired Justice Stephen Breyer,the two of them sparred often.
Quote, I have foundthe legal world too complex,

(37:54):
too different from the worldthe textualists assumes.
Good judges will first and foremost putconsiderable weight upon the purposes
that a statutory phrase seeks to achieve.
Law is tied to life, and a failureto understand how a statute is so
tied can undermine the humanactivity of that the law

(38:17):
seeks to benefit,close quote, Justice Alito.

>> Justice Samuel Alito (38:23):
Well, I agree with Justice Scalia that the meaning of
the Constitution does not change.
Nino was usually very good at framingthings in ways that the public
would understand and that would beattractive to the Constitution.
I don't know whether saying thatthe Constitution is dead as opposed to

(38:46):
living was perhaps the most felicitousphrasing but the core point is correct.
The Constitution, the meaning ofthe Constitution does not change,
but the world changes, and the issuesthat come before the Court change.
And so it's important tounderstand that originalism

(39:11):
is not a scientific formula thatyields a result mechanically.
If you just feed in the variables,you sit back and
it produces a result,always without any exercise.

>> Peter Robinson (39:25):
We could replace all nine of you with A.I.

>> Justice Samuel Alito (39:29):
Well,
that may happen before too long butuntil that point and
Justice Scalia recognized this,he recognized it.
I'll give you an example,in 1791, when the Fourth Amendment
was adopted,there were no thermal imaging devices.

(39:49):
2001, the court had a case called Killo,and
the question was whether a police officerseated in a car on a public street.
Where he had every right to be,was searching a house,
if the officer focused a thermalimaging device on the house,

(40:11):
could see through the walls and detectheat emitting objects inside the house.
So you can't look at the world asit existed in 1791 to see what
people thought about thermalimaging devices, they didn't exist.
So you have to draw an analogy.

(40:31):
Was that situation more likea police officer on a public street
looking through an open window,not blocked by shades or
drapes, and seeing what goes on inside?
That is not a search.
Is it more like that or is it likea full blown search where officers go
inside the house and they can seethings that are not visible through

(40:56):
a window that the homeownerhas left unshaded?

>> Peter Robinson (40:59):
For which they would need a warrant?

>> Justice Samuel Alito (41:01):
Right, and Nino said, no, it's like a search,
you need a warrant.
So, there's a question of judgment,what is the appropriate analogy?
And this comes up in many originalistcases, and there's room for
disagreement about whatis the proper analogy.

>> Peter Robinson (41:18):
And you call yourself a practical originalist,
to distinguish yourself from?

>> Justice Samuel Alito (41:23):
From an originalist scholar, principally.
There's a big difference betweenoriginalist scholarship and
originalist judging.
For one thing,if you're on a multi member court and
you're trying to producean opinion that at least four
of your colleagues will agree with,you have to make compromises.

(41:47):
And scholars,sometimes they jointly write a book or
an article, but much of the timethey write on their own and
they don't have to worryabout pleasing anybody else.
So that is a big difference.
In a system of precedent,after a case is decided against you,

(42:09):
let's say the court makes a decision andI'm in dissent,
and now another case comesalong that is similar, so
the earlier decision iscited as a precedent.
I have to make a decision.
Do I say, I'm sticking to my guns,you were wrong before, so

(42:29):
leave me out of the conversation.
Or do I say, well, I thought you werewrong, I still think you were wrong, but
I'll accept for present purposesthat that is the governing decision,
and then try to make the bestof that prior precedent.
Those are two examples of ways in whichbeing an originalist judge is quite

(42:52):
a bit different from beingan originalist law review article.

>> Peter Robinson (42:57):
Your job is tricky.

>> Justice Samuel Alito (42:59):
It is tricky, it involves judgment,
that's what judging involves.

>> Peter Robinson (43:05):
So, originalism, when originalism seems to go awry,
again, layman's questions here.
2020 case, Bostock versus Clayton County,the Supreme Court
found it unconstitutional to firean employee for being LGBTQ.
The reasoning, the Civil Rights Act of1964 for bad discrimination based on sex.

(43:30):
And the Court found that it is impossibleto discriminate against a person for
being homosexual or
transgendered without discriminatingagainst the individual based on sex.
Two quotations regarding that case.
Here's Justice Gorsuch writing forthe majority.
Quote, this Court has explainedmany times over many years that,

(43:51):
when the meaning of a statute's termsis plain, our job is at an end.
That sounds very originalist.
The people are entitled to rely onthe law as it is written, close quote.
Justice Alito writing in dissent.
Quote, because no amendment of Title VIIof the Civil Rights Act has been enacted,

(44:13):
the prohibition of discrimination becauseof sex still means what it has always
meant.
The Court attempts to pass off itsdecision today as the inevitable product
of the textualist school of statutoryinterpretation championed by
our late colleague Justice Scalia,but no one should be fooled.
Our duty is to interpret statutory terms,and

(44:36):
here you quote Justice Scalia,to mean what they conveyed to
reasonable people at the timethey were written, close quote.
So how can it be that originalism,fidelity to the meaning of the text,
can produce two such different results?

>> Justice Samuel Alito (44:57):
Well, reasonable minds don't always agree.
I think Justice Gorsuch is a great judge,great justice, but
we just disagreed very stronglyin that particular case.
And I would say thatBostock read the words,
this is the Civil Rights Act of 1964,adopted in 1964.

(45:20):
I would say that the majorityread those words mechanically and
did not take into accountthe context which requires,
I think, us to ask, what did Congressmean when it adopted that in 1964?

(45:41):
And I think once you consider that,
it's perfectly plain that discriminationon the basis of sex at that time,
was understood by members of Congress andwould be understood by the general public.
People just reading the bill to say thisprohibits discriminating against women or
discriminating against men, but not.

>> Peter Robinson (46:03):
For the simple reason that transgenderism had never entered
anybody's head before.

>> Justice Samuel Alito (46:07):
Transgenderism, no, was not even a thing, really.
It was not well establishedat all in 1964.
And I think this is the way speech works,I don't understand what you say to me,
if I'm reading any text orinterpreting any oral statement,

(46:29):
I don't just look up all the words inthe dictionary and put that together.
I'm taking other, there are other clues,
that's the way language works,it's always contextual.

>> Peter Robinson (46:46):
All right, Justice Alito,
a couple of questionsabout contemporary issues.
And as I stipulated at the beginning,if I wander into an area that's before
the corridor is in one way or anotherinappropriate, just pull your earlobe and
I will instantly retract the question.
But injunctions, here's aboutas far as this layman can get.

(47:07):
On the one hand, it cannot bethe case that any chief executive
is permitted to rule unquestioned byexecutive order, simply by issuing fiats.
Can't be the case, on the other hand,we now have, this is my count as of today,
somebody may have retired orbeen hit by a car.
But as of today, as I believe,we now have 677 district court judges,

(47:34):
it likewise cannot be the casethat each of these 677 men and
women, is permitted on his orher own to thwart the policy
of a democraticallyelected chief executive.
So, what do you do?

>> Justice Samuel Alito (47:53):
Well.

>> Peter Robinson (47:53):
How does one think this through?
This is not easy.

>> Justice Samuel Alito (47:55):
It is not easy, and
that is a problem that we have confronted.
Increasingly over the past six, seven,eight years and that continues and
you've exactly framedthe situation on the one hand.
Well, what sparks all of thisis the great difficulty of

(48:17):
getting legislation enacted by Congress.
At the Constitution deliberatelysets up a law making
procedure that is time consuming andlaborious.
So you have to have the same bill has topass in the House and in the Senate and
it has to be signed by the President andthen on top of that,

(48:39):
there's the Senate filibuster rule.
So you need 60 votes in the Senate thatmakes it very hard to get legislation
passed.
So as the difficulty of gettinglegislation passed has increased,
presidents have increasingly lookedto see what they can do on their own.

(48:59):
If you go back to 2014,President Obama famously said,
well, I'm not going todepend on trying to get
legislation through Congress,I have my pen, I have my.

>> Peter Robinson (49:14):
I have a phone and I have a pen.

>> Justice Samuel Alito (49:15):
I have a phone and I have a pen, so the pen was what he
could do executive orders, rules,other executive directors,
directives underPresident Biden that increased.
And we had a number of caseshere involving the unilateral
exercise of executive power bythe Biden administration for

(49:37):
giving up to $500 billionof student loans,
requiring all the participantsin Medicare and
Medicaid to require theiremployees to be to be vaccinated.
Directing Texas to take downthe barbed wire it had strung
across the border, requiring,imposing a moratorium

(50:01):
on evictions in areas thatwere hard hit by Covid.
By my count,we had 14 emergency applications filed by
the Solicitor Generalduring the Biden years.
And now during the first what is it formonths of the Trump administration,
I mean, the graph keeps going up and up.
So the President's exercise theirexecutive, their executive power

(50:26):
in an assertive way, and that'simmediately challenged in district court.
Sometimes by coalitions ofattorneys General from states where
the majority is not favorable towhatever the, to what the president is
doing 677 district judges,district judge says this is unlawful.

(50:47):
I order you to stop and I order you notonly not to do this to the parties who
were before me, I order you not to dothis at all anywhere in the country.
A universal injunction, this will bein place, a preliminary injunction,
it will be in place through the entireduration of the litigation,

(51:11):
which may take two orthree years before it could come up to us.
So as a result, if the court of appealsin that area doesn't intervene,
it comes immediately to us in the formof an emergency application and
that's what we're getting.
So with the Trump administration,

(51:32):
we've had cases involvingthe Alien enemies Act of 1798,
cancellation of contracts andgrants with USAID,
dismissing members of whatwere frequently called
independent agencies like the NationalLabor Relations Board and so forth.

(51:57):
And that is what we have been facingthat is what we are facing right now.

>> Peter Robinson (52:03):
Could I just ask that workload each of you has how many clerks?

>> Justice Samuel Alito (52:07):
Four. >> Peter Robinson
so it's nine justices andnine times four clerks and
here comes the 1798 Alien andSedition Act.
And here comes an this is,
I mean, I'm surprised I don'thear footsteps in the hallways
outside right now of clerks scurrying offto look at this law book or that law book.

(52:28):
That's just an enormous amount forthis body, which is composed, after all,
extremely intelligent individuals,extremely well trained individuals, but
a small number of human beings.
Well, it is a great challenge and
some of these require some of the issuesare all the issues I've mentioned,
I didn't mention the birthrightcitizenship issue.

(52:50):
All of these issues are important andthey're difficult some of them,
like the Alien Enemies Act orbirthright citizenship, calls for
a lot of historical research.
We do get very good briefs and we geta lot of them now we get a lot of them,
so a lot is placed beforeus on a silver platter, so

(53:13):
to speak but it can be a verylarge platter, heavy platter.

>> Peter Robinson (53:19):
The unitary presidency versus Independent agencies, again,
if I stray into material I ought not tolet me know a couple of quotations here.
John Yoo and Robert Delahunty inNational Review this past spring, quote,
the Constitution makes the presidentsolely responsible for
executing the laws andprotecting the nation.
What the Constitution does not permit isthe creation of an independent branch of

(53:42):
government that answers to no one,close quote,
here's legal reporterGreg Rosolski on NPR.
Quote, historians generally agree thatthe first independent agency, that is,
there have been others, the firstindependent agency in the US government
was the Interstate Commerce Commissionfounded in 1887.
In other words, there are a lotof independent agencies and

(54:03):
they've been around for a long time,so how does one balance that one?

>> Justice Samuel Alito (54:07):
Well, that's a difficult issue and
the question of the removalof the dismissal of heads of
multi member agencies like that,the NLRB, for example,
is something we're going to haveto decide probably next term.
So I can't talk, I don't want to talkto it directly but the general, I mean,

(54:32):
I can say this, the general rule is thepresident is given the executive power.
And so I think there's general agreementthe vast majority of the executive
branch is under the President'scontrol and the President can
appoint the cabinet officers andother other political appointees.

(54:54):
There's the issue of whetherthese independent agencies
have a different status.
The court held in a case calledHumphreys Executor, yes, they do but that
was what if that was I asked about 1935,I think something like that, all right.

>> Peter Robinson (55:11):
A couple of last questions if I might.

>> Justice Samuel Alito (55:13):
It was later than 1935 but it was in that that era.
All right.

>> Peter Robinson (55:20):
If I may, a video of your late colleague Justice Scalia,
your late colleague andclose friend Justice Scalia.

>> Justice Antonin Scalia (55:30):
But what matters is the Constitution,
we had a wonderful thing here.
We have a wonderful thing here and
I truly believe it can't continueif we simply turn over so
much of the democraticself-governance which is what makes
us great to unelected judges,that's what I care about.

>> Peter Robinson (55:53):
That was on an interview on this program and
I was struck at the time and I have toconfess it's bothered me ever since.
The way justice go, that formulation inthe first part of that clip that you saw,
Justice Scalia said,
I felt unselfconsciouslywe had a good thing here.
And then he immediately corrected himselfand said, we have a good thing here.

(56:15):
But that's always made me worrythat just maybe he felt the wheels
were coming off the project.
We talked this, but we framedthis conversation as a discussion
about a great act of legal restoration,how's the project going?

>> Justice Samuel Alito (56:34):
Well, I think the results are mixed.
There's been a lot ofprogress on a lot of fronts.
Justice Scalia had a lot to do with that.
He cared a lot about government structure,which is what we were just talking about,
the power of the presidentversus the power of the courts.

(56:55):
He cared a lot about that.
He was interested in limiting, limiting isnot exactly the right word, in holding all
three branches of the government to thepower that they have in the constitution.
If they have it, fine,exercise it to the full extent, but
don't go beyond the power that isgiven to you under the constitution.

(57:16):
And he tried to enforce that against allthree branches of government, Congress,
the executive, the judiciary.
On that little clip,he's talking about the judiciary.
He was very concerned, andhe had reason to be concerned at
the time when he turned hisinterests to constitutional law and
then became a judge in the early 1980sin what he thought judges were doing.

(57:42):
Which was really using their authorityconsciously or unconsciously to
promote their own public policy views,and he wanted to put a stop to that.
And that is one of the majorthreads of his work.
So he wanted clear rulesas much as possible.
He hated nebulous rules, he hatedbalancing tests, he wanted clear rules.

>> Peter Robinson (58:05):
And he won an intellectual victory.

>> Justice Samuel Alito (58:07):
He won an intellectual victory to a large degree,
but it's never settled.

>> Peter Robinson (58:13):
No, victory is in the- It's not permanent.
It's even on this court.

>> Justice Samuel Alito (58:16):
It's not complete.
So he championed originalism,which we've talked about, textualism.
And people who you might have thought wereon the other side of the debate on both of
those issues have said, we're alloriginalists now, we're all textualists.

>> Peter Robinson (58:31):
Justice Cagle.

>> Justice Samuel Alito (58:33):
Yes, but different people have different ideas
about what originalism means andwhat textualism means.

>> Peter Robinson (58:39):
Last question, Justice Alito, from your commencement address at
Franciscan University, you're talkingto kids here, graduating kids.
When you venture out into the world,you may well find yourself in a job or
a community or a social settingwhere you will be pressured to
endorse ideas you don't believe orto abandon core beliefs.

(59:03):
It will be up to you to stand firm,close quote.
What are the resourceson which you personally
draw in standing firm on this court?
Also, frankly, just as a human being,after the Dobbs decision in 2022,

(59:24):
there were protesters outside your house,all kinds of harassment,
threats, and so forth.
A lot of people would have thought aboutjust packing it up and taking retirement.
What makes you keep comingback to this institution?

(59:44):
And when you're sitting atthat conference table with
your eight colleagueswho are all well spoken,
impressive type A individuals,how do you hold your own?

>> Justice Samuel Alito (59:59):
Well, I do my best.
And I recognize that it's an enormousprivilege to be able to do what I'm doing.
Nobody should think I deserve to beon the Supreme Court because I'm
the best-qualified personto be on the Supreme Court,
I'm better qualified than anybody else.

(01:00:20):
Nobody should think that way.
There is no Supreme Court aptitudetest that everybody takes,
and so the person who gets the highestscore gets the nomination.
It's like being struck by lightning,it's a great privilege,
nobody forces us to take the job orkeep the job.
But if you really love the constitutionand our system of government and

(01:00:44):
want to preserve it,then I do think you have to stand firm.
And to be honest, it's a lot easier forme to do that than it is for
those college students that I wastalking to, because I have life tenure.
I've had life tenure forthe past 35 years.
So in my opinions,I can say what I think is right, and

(01:01:04):
I'm not gonna get fired for doing it,and I'm not gonna get my pay docked.
There may be other unhappyconsequences that follow.
But for those college students, they'regonna have to try to hold down jobs,
and they may be pressured inexactly the way that I mentioned,

(01:01:25):
to endorse things, accept things,say things that they know are wrong.
And I hope they will have courage,I hope they will have fortitude.

>> Peter Robinson (01:01:35):
I told you a bit of a fib, that wasn't the last question.
Here's the last question, and
this is about the role ofa judge within our legal system.
So you've been on this court 35 years,imagine somebody
graduating from Princetontoday as you did in the 1970s.

(01:01:58):
You were class of.

>> Justice Samuel Alito (01:01:59):
72.

>> Peter Robinson (01:02:00):
72, all right.
And this Princeton kid wants to goto law school, has that figured out.
And already knows that becoming a publicdefender would involve a certain amount
of just gratification forsticking up for the little guy, becoming
a corporate lawyer is beginning to climbthe ladder at one of the big firms.

(01:02:26):
The rewards there are obvious,you can count them,
you put them in your bank account, andthe partners at firms in this town pull
down multiple millions ofdollars a year these days.
Why should any kid graduating fromPrinceton today, as you did in 1972,
ever set his sights orher sights on becoming a judge?

>> Justice Samuel Alito (01:02:50):
Because it is a way of contributing powerfully to
the well being of our society,it's an important job.
The other jobs you mentionedare also important, and
they can be done in ways thatare productive for our society.

(01:03:10):
We need good public defenders,it's an important position.
If someone wants to do it,more power to them.
I think you can practice asa business lawyer in a way that
contributes to society.
If you do that withinthe bounds of your ethical and
professional responsibilities andyou can go down the line.

(01:03:34):
But being a judge, judges have a lot ofpower, they have a lot of responsibility,
it's important forthe job to be done well.

>> Peter Robinson (01:03:42):
Mr. Justice Samuel Alito,
the 110th Justice to serve on the SupremeCourt of the United States, thank you.

>> Justice Samuel Alito (01:03:49):
Thank you.

>> Peter Robinson (01:03:50):
For Uncommon Knowledge, the Hoover Institution, and Fox Nation,
I'm Peter Robinson.
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