Justice Alito on Sports Gambling, ‘Nutty’ Law Reviews, and a Judge’s Fighting Spirit

Alito tells National Review what a justice needs and reads, and what worries him the most about the future.

T his is the second half of my interview with Justice Samuel Alito, as promised. You can read the first part here, in which we discussed originalism, baseball, and the current hostile environment for Supreme Court justices, among other topics. In part two, we discuss the proper qualifications for justices, whether he regrets any of his decisions, when he reads law review articles, and what worries him about the future.

There were, of course, many topics we didn’t discuss, including Dobbs, leaks, ethics, recusals, and retirement. My philosophy of interviews is that I don’t bother asking questions that have already been answered, or that aren’t likely to get an answer. So, I didn’t bother asking things that are already answered in Alito’s published opinions, or in his book. Alito told Bloomberg all he was likely to say about his recusal in the Suncor case. And his interview last week with Jan Crawford of CBS covered a lot of ground that would have been redundant to retread.

The transcript has, again, been lightly edited for clarity:

NR: If a vacancy opened up on the Court, out of the blue, and the president called you up and said, “Just want to pick your brain, what should I be looking for? What does the Court need, or what do you think is the most important thing in picking a justice?”

JUSTICE ALITO: I think there are a number of attributes for an ideal appointee to the Supreme Court at the present time, and I wouldn’t by any means say that I was an ideal appointee. So I’m not trying to list characteristics that I claim to have myself; I think they’re obvious things. A person has to be intelligent, has to have knowledge — understanding of the Constitution and the laws. You know, you’ve got to hit the ground running when you start here, and you have to learn quite a bit on the go, because there are areas of law that, in all likelihood, you never encountered in whatever you did before. Although I had been a federal judge for 15 years, I never had any cases involving Indian law, for example. I never had any cases involving patent law, since they don’t go to the regional courts of appeals. Those are just two examples. There are other areas where I didn’t do very much work, like antitrust, but it’s helpful to know something about as much of the whole range of areas of law that we deal with as is possible. Certainly, that’s necessary for the hearings, which come up really fast, and the interviews with individual senators; those are kind of the obvious things.

It’s helpful to be able to write well because you’ve got to write a lot, and I think a person nominated for the Supreme Court has to be able to stand up to the unique pressures of being a judge at this level, and it’s gotten harder because of the hostility and the harassment. I think it’s helpful if the person has been subjected to a little bit of that, or at least has some understanding of what things are like in Washington. They’re not like they are, you know, in a lot of other places in the country. When I was at the Court of Appeals, the media paid no attention to me whatsoever, and not very much to my court. Here we get too much, you know, too much attention is paid to us. So [to have] certain toughness in that respect, and I think quite a bit of fighting spirit, because the cases that come here are hard. The things that we were looking for [are] really important issues and issues on which reasonable people disagree because that’s [what causes] conflicts in the courts. So you have to have a bit of a fighting spirit. Those are the things that come to my mind.

NR: What have you learned from your clerks?

JUSTICE ALITO: Well, they’re very helpful to me on all of the cases. So those are the briefs for tomorrow’s case [pointing to a file of about half a dozen briefs on the table]. Once we’re finished, we’re going to sit here, and we go over the case that’s going to be argued tomorrow, and we try to think of the weak points in both arguments and questions that might be helpful. I’ve had some tremendous clerks. I have really no complaints about any clerks that I’ve had here. I learn about new technology and changes in society. We justices increasingly — we’ve always lived in sort of a bubble, and now the bubble has gotten stronger. So, [the clerks’] contact with the changing outside world.

NR: One of the things you wrote about in So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country is the spread of our American idea of judicial review to Europe. Does our style of judicial review work in, say, systems that don’t even have a written constitution — I mean, there’s been big controversies over that in Israel, for example — or when you’re dealing with, say, some of these European treaties that the people who live under them have very little opportunity to change them, even compared to our amendment process?

JUSTICE ALITO: Well, I’ll say two things. I think that the protection of fundamental rights by courts is a good thing — and so it is — and that is why it spread after the Second World War. Before the Second World War, it was distinctively American, and nobody outside of the United States — I’m exaggerating slightly, but not by much — liked it. They didn’t like it in the U.K., where they believe and continue to believe in parliamentary supremacy. They didn’t like it in the continental system because they thought it gave too much power to judges, but it was adopted, I think, as a response to the Holocaust and the desire to do something more to protect individual rights. I think that was good. What I think is lacking in the continental legal system, in the civil law systems, to the degree I understand this, is anything like legal realism in the United States. There’s not the kind of appreciation we have here about the threat, the counter-majoritarian problem. They just don’t think about it that way. I don’t know what it is about the civil-law system that tends to make them not think about it that way, and so that is a discipline that I think judges in our system have.

NR: You have some criticisms in the book about law reviews and legal academia floating off, and yet you cite some law review pieces. What is your reading diet of legal scholarship? How do you get those things and figure out, out of the vast corpus of it all, what outside of a particular case might be worth reading?

JUSTICE ALITO: Well, within the context of a particular case, there very often is a lot of very valuable legal scholarship, and so I will read that. And there are scholars that I greatly respect, and so I will often read what they’re writing. I do. We get a lot of law reviews. They just send them to us. I have a huge stack that I haven’t gone through. And what I do is I look at the titles, and I see if it’s something that looks interesting or maybe valuable to me. So here [picks up the Virginia Law Review off his desk along with another law review]: I haven’t read this: “The Moving Property Problem in Fourth Amendment Law” by Orin Kerr. I know Orin; he’s a very good Fourth Amendment scholar. I don’t necessarily agree with everything that he writes. He clerked the same judge [as I did] as he comes out. So, I’ll probably take a quick look at that . . . I’ll read the abstracts and see what they’re saying.

Some of what is written is just not helpful. Some of it’s just so abstract. It’s a total reexamine of a new system of doing this or that, and some of it is just nuts. The Developments in the Law volume of the Harvard Law Review used to be valuable, and it used to be an important area of the law where things were changing, and that’s what it was: Developments in the Law. But then they had one a couple of years ago: Developments in the Law — The Abolition of Prisons. I mean, what society has done without prisons? What are we supposed to do with the incorrigible, the serial killer? It’s nutty stuff.

NR: Do you have any regrets looking back, decisions you’ve made, opinions you would have written differently?

JUSTICE ALITO: Oh well, if I were to go back, I’m sure there would be a lot that I would improve. I had been asked something like this, and I’ve given it some thought. What I’ve been asked is: Justice Scalia would name the flag-burning decision as an example, and the example that came to my mind was my opinion in Murphy v. NCAA about sports betting. I don’t regret it. I think it’s right on the correct interpretation of the Constitution. The structure of the Constitution says Congress cannot command a state legislature to do something, so it’s right on the Constitution. But I personally dislike any form of gambling. I know I’m going to lose, so I don’t want to bet. And I think sports betting is very dangerous for sports.

NR: And it saturates even the advertising on the games these days.

JUSTICE ALITO: Oh, it’s incredible. We had — I won’t say who — a prominent former major league umpire came here and talked to some of us, and he said he thought it had made the fans much more obnoxious because they were yelling at the players because the player had done something that was going to lose them money. Because people can bet on anything that happens.

NR: And that’s going to make them angrier with the umps too. In fact, you use an analogy to the umpires in the book, talking about that umpires, and referees too, that they’re supposed to sell the call — really emphasize what they’re doing. And your view is that that’s not what judges should do. But isn’t there a temptation to make it sound as if your side is the only possible conclusion?

JUSTICE ALITO: Yes, there is a tendency to do that, and there’s a tendency to do that in opinions. That appears in [the book because] that was prompted by a fellow who . . . they wanted me to do a video for a convention of sports referees, and they gave them talking points, and the first talking point was: It’s not about getting it right; it’s about looking good. Now, that’s something judges should not do. Judges have to get it right. That’s what’s important, whether people like it or not. It’s important to get it right. But when you’re writing an opinion, particularly if there’s a dissent, there’s a tendency, maybe, to oversell your argument.

NR: I guess the appearance of decisiveness is a little more important when you’re a trial judge making rulings in the moment.

JUSTICE ALITO: I think that’s certainly true.

NR: But up here, you don’t have Earl Weaver kicking dirt on your shoes when you make a [call].

JUSTICE ALITO: What would Earl Weaver do today? I think he’d explode.

NR: One of the things that came to mind reading your description of Learned Hand and his cousin handling the Ulysses case [when the federal government tried to ban James Joyce’s novel for obscenity], you noted that he gave his cousin the instruction to not use a quotable line, and I thought if you ever told Justice Scalia that he would take up making librettos or something.

JUSTICE ALITO: No, no. He used to say he was a professor at heart, until the day he died. Even after he had been a judge for 30 years, he was still at heart a professor, and he told me, and I think he said this publicly, that he wrote to law students. He wanted to make his opinions interesting so that they would read them, and they would be persuaded. So, he was a very good writer in a very colorful way. [He] poured a lot into it.

NR: Now you have a whole generation of lawyers, judges, even a few justices on the court of my generation who did that, who grew up, came of age reading his opinions.

JUSTICE ALITO: Yeah, He was very, very good at it, and others of us who were not so good at it, maybe we shouldn’t try to be another justice.

NR: One of the differences there within originalism, even that you talk about in the book, as far as kind of the common touch, is this debate between “Should you read the Constitution the way somebody reading it aloud in a tavern would have understood it?” and “Well, but wait, some of these are legal terms that really are meant to mean what the lawyers of that day would mean.” How do you balance that?

JUSTICE ALITO: Well, I think intelligent people in the tavern would, one hopes, spot a legal term, and then if they had concerns about it, ask a lawyer or do a little bit of research. So, what’s an ex post facto law, for example? What does this mean? You would recognize this is a legal term. Maybe it’s like a medical term. So, you see somebody has been diagnosed with some disease. You can’t figure it out if you’re not a doctor. You don’t know what that is. So that’s how I would reconcile it. But the theory of the Constitution is that the people are sovereign, and therefore the Constitution is authoritative because it was approved by the people, and in the case of the Constitution, the people were the people who went to the ratifying conventions, or for later amendments, the state legislatures.

NR: You’re the last justice on the Court — at the moment, at least — who served in the military. Is that a perspective you think the Court would miss if it got down to having nobody here who’d served?

JUSTICE ALITO: My military service was quite brief. Something has been lost, but I don’t . . . Well, let me put it this way: back in the time when people were drafted and during a war, it tended to unify the country and brought together disparate people, people who probably never would have had a close association before. So I do think it tended to have unifying force. The judges I knew as a law clerk on the Third Circuit — and I served with many of them after I became a judge on that court — were deeply affected by their service during the Second World War. So, I’m glad we haven’t had another World War that would bring everybody into the military. But that is something that’s lost.

NR: To sum up, what, looking around at the Court, at the system as it is now, because the political system has problems, maybe different problems than in the past. What worries you the most? What makes you think that this is something we really need to teach the next generation, or that we need to fix in the system, or just communicate better in order that this whole constitutional project survives?

JUSTICE ALITO: Well, I’ll answer it in two parts. The first addresses the public. The second addresses the system in itself, and they’re related because the long-term health of the system is dependent on public attitudes about the constitutional system.

It is troubling that the public has increasingly lost confidence in the constitutional system, in the fairness of elections, in virtually all institutions, public and private, including the Supreme Court. Support for freedom of speech, which is fundamental to democratic self-government, has declined dangerously, certainly dangerously in some quarters that are important: in academia, among students, because of the influence that they will eventually have on the rest of society. That’s the most serious problem.

In terms of the way the system itself works, the serious problem is that Congress, due to polarization, is unable, maybe in some instances, unable or unwilling, to address pressing national problems, and that results in the whole system being out of kilter. So, presidents have increasingly responded to that by trying to do as much as they can with their own powers. They stretch the limits of presidential power, or at least they go up to the boundaries with executive orders and rules and reinterpretation of existing statutes, and the response to that has been strong litigation tactics.

So these things that the presidents have done — and this is bipartisan — they get challenged very aggressively and quickly, and the lawyers choose the districts where they think they have the maximum chance of success. Don’t blame them for doing that; they’re litigators, and their prediction about success is very often accurate. So, the district judges also are also exercising their powers more robustly, and also in some instances going up to the line or over the line, and then that’s what has resulted in an emergency docket, and we get one controversial national issue after the other, which we have to deal with on an emergency basis.

That’s not the way the system is supposed to work. I don’t know how it’s going to change unless issues are addressed by Congress or one of these other factors changes. None of the proposals that have been made, the things that we could do, or minor adjustments, I think, would change the problem. It could be that the number will die down over the next two years. I don’t know. Who knows who the next president will be, or what that president will do. It could die down, but this has now continued for a number of administrations. It was very noticeable during the Biden administration; I could do a graph [draws a sharply upward curve in the air]: the end of Obama’s term in office, Trump’s first term in office, Biden’s term in office, and then since January of 2025, it’s just going through the roof.