Justice Alito Speaks Out on Media Harassment and Why the Rules Still Matter

The author of Dobbs sits down with National Review.

I sat down Tuesday with Justice Samuel Alito in his chambers at the Supreme Court to talk about baseball, his judicial philosophy, his Catholic faith, and the various current crises for the Court and the American political system. Our discussion revolved around his new book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, a collection of his speeches that was released that day. I’ll have a review of the book up soon.

The 76-year-old Alito is taller than you’d expect in person and hardly looks like a man who is thinking about whether his age should lead him to retire, as he told Jan Crawford of CBS. Then again, while he was characteristically blunt and candid in that interview, he didn’t really say anything of more substance on the topic of retirement than the usual D.C. rituals for judges and politicians who won’t tell you anything of significance about their future plans until they are ready to say what they’ve decided. He’s day-to-day, but aren’t we all?

In fact, Alito doesn’t talk to the press all that much. But when he does, he’s not as guarded as some of his colleagues. He says what he thinks. In our conversation, he chose his words with care, but he didn’t shy away from defending his own point of view.

He walked me through his collection of baseball memorabilia, which (as he wryly noted) his wife prefers that he keep in chambers, not in the house. It’s something of a shrine to his beloved Philadelphia Phillies. He has a collection of Robin Roberts memorabilia, including Roberts’s fine autobiography My Life in Baseball. He has a tribute to Jim Bunning, less as a Republican senator from Kentucky or a Baseball Hall of Famer than for his 1964 Father’s Day perfect game as a Phillie against the Mets; Alito vividly recalls watching it on television as a teenager. He has — every baseball card collector of my generation will recall this — a 1978 card of Phillies reliever Warren Brusstar in full late-Seventies perm and facial hair. He has a photo from the introductory dinner thrown for him by Justice Stephen Breyer (the prior junior justice) upon his arrival at the Court, when Breyer arranged for the Phillie Phanatic to crash the dinner. The photo shows the Phanatic embracing a laughing Justice Clarence Thomas. What he describes as his most prized possession is a “Silver Glove Award” from Phillies fantasy camp in 1994, given to him for the best fielding in the camp — but, he notes with typical humility, he couldn’t hit.

What follows is a lightly edited transcript of the first half of our conversation. We’ll run the second half in a subsequent column:

NR: So, they say civility is dead, but here I’m a Mets fan and talking to a Phillies fan.

JUSTICE ALITO: Well, the Mets fans and Phillies fans care deeply, so there’s that in their favor. Their politeness is not at the same level as fans from other teams. But you know, they’re related. My son says this: that you should not be allowed to be very happy about your team winning if you’re not also very upset when they lose, and there are fans who don’t satisfy that.

NR: Have the game’s rules changed too much?

JUSTICE ALITO: So, I don’t like some of them. I don’t like the extra-inning rule at all. I hate that. The pitch count, I think, has been valuable because the games have gotten insufferably long, and it has shortened the games. I think that’s an improvement. I think that the challenge system they had this year is good. If fans are going to be able to see the box on the screen and see that a ball is really a ball, that a pitch that’s called a strike is a ball, then it’s better to have the computer check. You know, most of the time it’s probably not going to make much of a difference. But when something like that ends up dictating the outcome of a game, it’s better for it to be accurate.

NR: Which, I guess is if you’re using balls and strikes as your metaphor for the Court, as some do, that’s why you check your work before you put it out there.

JUSTICE ALITO: Yeah, one of the speeches in my book is about baseball, and when I gave that, they had not yet gone to the computerized system, but there still are judgment calls in baseball, and my leading example is the check swing, because nobody — the rule says it’s a swing, it’s a strike if the batter strikes at the ball or tries to hit the ball, something like that. It’s none of the rules that we thought were the rules when I was a kid. When you broke your wrist [makes batting grip gesture] and any of that, but I gather that you probably know this better than I do. There is a system that they may be using in the minor leagues now that would provide . . . it would measure how far the batters swung, so they’ll take that out of the hands of umpires as well.

NR: The New York Times had a piece just last week about the chief justice’s vacation home. Pictures of where he stays. In this climate, with all of the threats that have been escalating against the justices and the judiciary generally, is that responsible journalism?

JUSTICE ALITO: No, I don’t think so. It’s harassment, and people who don’t like our decisions, don’t like his votes, hold him responsible for what the Court does as a whole, have plenty of other ways to register their disagreement, and they have the perfect right to do that. They can protest down here all they like, but I think I think it’s bad for our society to make it unpleasant, not to mention dangerous, for judges and other high-ranking public officials to feel insecure in their homes.

I mean, we could. I don’t want us to become like some countries where all of the high-ranking officials and police officers, judges, as I understand it, have to live in armed compounds.

NR: That also deters people with families from going into [the judiciary].

JUSTICE ALITO: Well, it does. Yeah, it does. Now he doesn’t have young children, and neither do I. But Justice Barrett does, and the atmosphere is very bad for someone in that position. The Court provides security for us, and the executive branch can provide security for cabinet officers and so forth. But they don’t provide security for children in that. To some, to a parent, that’s more important, really, than their own personal security.

NR: Has this climate made it harder to maintain collegiality on the Court?

JUSTICE ALITO: Yes. The rhetoric, in our opinions, as you can see, the rhetoric and questioning in court. Of course, that is not directed at us. But the rhetoric in general, the rhetoric and the opinions and the dissenting opinions and the dissenting bench statements, sometimes even in speeches that justices give, has escalated, and in a few instances, I think, has gone over the line.

NR: You mentioned that the emergency docket cases, the number of applications filed, has now exceeded the number of cases the Court hears on its certiorari docket. Is that putting pressure on the Court to take fewer cases on the regular docket?

JUSTICE ALITO: No, no. The reason why we have fewer cases, why our case numbers have declined, is a mystery. We don’t really know what the reason is, but no. We’re always looking for cases when we have conferences. Very often, someone will say, “Well, we need cases” as a part of the plea for us to take particular cases. The emergency docket is a burden in itself, but it hasn’t had that effect.

NR: You refer to yourself in the book, and some of the speeches in the book, as a “practical originalist,” and I was thinking a little bit about the 2000 election. George W. Bush ran as compassionate conservative, and there were some people behind McCain who were saying “national greatness conservative,” and more than a few old-school conservative columnists asked, “Why does conservatism need an adjective?” So why does originalism need an adjective?

JUSTICE ALITO: The phrase “practical originalist” was completely off the top of my head. I think I explained in the book how it came about. I was talking to a group of very eager young originalists, and they asked me, “Are you really an originalist?” And so I, that was the best that [would] come to my mind at the time. . . . It does many things . . . but the clearest is it distinguishes what I am doing from what an academic does. An academic originalist tries to ascertain what was the original public meaning of the constitutional provision, and if that’s contrary to a century of precedent, and if adopting that in a judicial decision would cause all sorts of turmoil, that’s not a worry for the academic originalist. For me, it is, because we’re deciding real cases that have real-world consequences.

NR: I mean, I, as a originalist columnist, can, say, look at the Court’s Eighth Amendment jurisprudence and say “this is all made-up nonsense.” You have to take it seriously and work within that framework.

JUSTICE ALITO: Well, yeah, that’s exactly right, and there are a couple of instances where the Court’s case law has perhaps taken a turn that’s doctrinally incorrect but ended up at a place that I think is probably a correct understanding of what the Constitution was originally intended to mean. I think the dormant commerce clause is an example of that. The Annapolis Convention that led to the calling of the convention in Philadelphia in 1787 was prompted by trade barriers that were erected by the states, and it’s impossible for me to believe that there is nothing in the Constitution that prevents states from erecting these trade barriers, from discriminating against trade from other states. Now, it may be that the commerce clause isn’t the source of that protection — it may be the import-export clause or privileges and immunities clause — but it’s in there somewhere. But the dormant commerce clause is the route that it took, and to me, I don’t think it’s true to the original public meaning of the Constitution as a whole for us to say now, no, we’re going to wipe out the dormant commerce clause, and by the way, we’re not going to go back and reexamine old precedents regarding these other provisions.

NR: I think on the practicality front, one of the things that I think people didn’t always fully credit Justice Scalia with, and I think this is part of what you’re also driving at, is the practical political philosophy, in his view of understanding separation of powers, federalism, how these political institutions actually work.

JUSTICE ALITO: Yes, that’s absolutely true.

NR: How did you become an originalist? Because originalism didn’t really — it barely existed as a theory when you were in law school.

JUSTICE ALITO: Yes, there was no mention of it, certainly by name. And at that time, the conventional wisdom was that anything like originalism was flat-earth stuff. It was not reputable. One of the first . . . legal scholars from approximately that era who could be called an originalist was Raoul Berger . . .— people liked his originalist understanding of the impeachment clause, and then he went on to write about the 14th Amendment, and that was not liked so much. But he was not even a tenure-track professor at Harvard, so I certainly didn’t learn about it in law school, and I did think from even before the time when I went to law school, and throughout law school, that the Supreme Court was going down an erroneous path, and that some important decisions, it was difficult to understand the ground for those decisions.

So I was . . . trying to understand — to diagnose the problem. I was quite attracted by the writing of Alexander Bickel. Bickel was not an originalist, but he did point out, and he was very, very much a mainstream scholar, that the Supreme Court was making mistakes. So that was the first alternative, and that was largely just the theory of judicial restraint, which had respectable standing at that time, even though it wasn’t the one, it wasn’t the view that had prevailed in the Supreme Court in the Sixties. But it was advocated by Felix Frankfurter, and everyone I think realized he was a very intelligent and scholarly man. And then originalism emerged as an alternative, and it provided a clearer antidote to what the Supreme Court was doing.

NR: I spent a good deal of time in the sabermetric world of baseball analysis, and for a while, people were just arguing against the people who didn’t buy the premises, and then a time came when they had sort of won the argument, and then people started to have debates among themselves. And it seems like originalism got to that point where it had won enough of the argument that people could start debating within its premises.

JUSTICE ALITO: I think that’s right. It’s had considerable success, particularly in the federal judiciary, and I think it’s an appealing idea to the general public because it’s a very simple idea, and it is very closely related to how we interpret all documents. If I have a contract or a will, it’s interpreted to mean what it would have been understood to mean at that time, not what somebody coming years later thinks this is the best understanding of it. So, I think it has achieved a measure of success. . . . I think I have written, I thought the three founding fathers of originalism are Robert Bork, Antonin Scalia, and Ed Meese. I’ll take Justice Scalia. He was engaged in the process of trying to convince people to accept originalism — he was evangelizing — and after achieving a degree of success, then these issues came up. The hard questions about originalism became more prominent.

NR: I mean, at the outer limits, one of the things you’re starting to see on the right, with some of the younger people particularly, is this kind of sense that this is a rules-based order. Why do we need rules-based orders? Only one side follows the rules. That kind of thing. I mean, how do you respond to that kind of sentiment, and is that something you’ve heard and seen out there?

JUSTICE ALITO: Well, I’ve read about it, and I would respond by saying we do need rules, and the fact that other people violate — are ruleless, are lawless — is not a justification for our being ruleless or lawless. It’s not right, and ultimately, I don’t think it’s a recipe for success in the future.

NR: One of the quotes on these kind of debates from your book: “Unless originalism is widely viewed as generally producing good results, it is hard to see how it will be able to survive as anything other than a minor academic curiosity.” That’s a point about the public’s acceptance and the political system’s acceptance. But what, if anything, can you do about that as a justice?

JUSTICE ALITO: That is included in a part of the first chapter, which was what was condensed in the Wall Street Journal. That is talking about what I think is an improper variant of originalism, which is insecure originalism, and so that overcoming this insecurity is something that I think we, that judges, should do, and I don’t think the message about originalism to the general public — I don’t think it is helpful to highlight the instances in which it leads to a socially undesirable result. It will do that sometimes. Certainly, any neutral rule, any rule applied neutrally, will sometimes produce results that people don’t like, and maybe results that are really socially not just unpleasant, displeasing to particular people at a particular point in time, but socially undesirable. But the American people are never going to accept a system, a rule of constitutional interpretation that consistently produces results that they hate. That’s just the practical reality, and I don’t think the Constitution, properly interpreted, does that. It was meant to provide for workable government and to protect rights and to produce and to be socially beneficial.

NR: It’s a good system because it works.

JUSTICE ALITO: It does work. It has worked for 200 years, 200-plus years.

NR: One of the other discussions you had included in the book — a speech from I think four years ago on “common good constitutionalism,” which is maybe a different take on saying, well we need to rethink originalism and for some people, that means sort of overthrowing it, and for others, maybe just introducing new elements into it. But you have a quote here about the uses of natural law: “Because natural law is often seen as distinctively Catholic, any invocation of natural law would risk stirring up anti-Catholic prejudice.” Is that something that gives you real pause about getting into those sources of law as a force in constitutional law?

JUSTICE ALITO: Well, it’s not the main reason for not getting into it. The main reason is that I just do not think I have the authority to impose on the country anything that is not in the Constitution or the statutes that we interpret. I took an oath to carry out the duties of the office. I think the duties of the office are defined by the role of the federal judiciary under our constitutional system. So, and that means interpreting and applying the Constitution and the statutes. And if I go beyond that, then I think I am not adhering to what I promised to do in the oath, and that’s a religious obligation as well as an obligation that someone who is not religious would presumably feel a moral obligation to follow. So that is the reason.

But this is a collateral. This is a message to Catholics who are attracted to this to say, “Be careful about this,” because this has been the slander against Catholics from the beginning of the country, and it lives on. When we decided, when we upheld by five to four vote, the constitutionality of the Federal Partial Birth Abortion Act, the Philadelphia Inquirer ran a cartoon — I don’t know who the artist was — of the five Catholic justices with cardinals’ miters on their heads. This prejudice will never completely die, and it’s something Catholics ought to be careful about.

NR: The other interesting line, and maybe this connects to that in that same speech: “Prudence is a cardinal virtue, and therefore proponents of common good constitutionalism should take into account what the adoption of their theory would mean in practice.” What else might be a danger in practice of going down those roads?

JUSTICE ALITO: I think there is very poor popular understanding of what natural law is, and I think for a lot of people, it’s just a synonym for the judicial imposition or the government’s imposition. Well, let’s confine it to what it would be for judges, judicial imposition of whatever they think is good for society. It is equivalent to — there is not a distinction, I think, in the thinking of most people, certainly of non-Catholics, and also I think the vast majority of lay Catholics, they don’t understand what a disciplined system of thought it is. Whether it’s the older version of natural law or the John Finnis version of natural law, still it’s a very philosophically disciplined system. But I think that’s not understood.

NR: On a more positive note, you give the last quote in the book, spilling over onto the last page of the book, to Fulton Sheen, who was just beatified. What is your memory or meaning to you of him?

JUSTICE ALITO: Well, I was invoking him in a particular context. He gave the keynote speech at the dinner to commemorate the founding of Thomas Aquinas College in California. So, I have a little bit of a memory of him from growing up and seeing him on television, and I’ve heard quite a few of his recordings of his speeches. He was an incredible orator. In fact, I was just reading — my wife took out a book from our church library of some of his speeches, and I was just reading some of them. I think he’s better when you hear him than he is when you read him. But he was an extremely persuasive and influential person at a time when it was harder for Catholics to get a fair hearing.