Why Is Alito Like This? with Peter Canellos

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Peter: His mother was a public school teacher who would use Bible verses in her lessons, and the Warren Court said, you can't do that.

0:00:18 Peter: My God, he's a completely different person. I don't know him. This is not my Sam Alito. There was a lot of people saying that. That's part of the mystery of Alito, is just when that change occurred and why that change occured.

0:00:37 Thomas: Hello and welcome to Opening Arguments. This is episode 1272. I'm your host, Thomas Smith. Got a fun one for you today. We are interviewing Peter Kanellos, author of the first Opening Arguments book club book. It's called Revenge for the 60s, Sam Alito and the Triumph of the Conservative Legal Movement. Basically, why is Alito like this? Why is he this way? Really interesting stuff. Reminder, if you want to join that book club, patreon.com slash law. Oh, I also want to say I'm going to be at Skeptical. It's a really cool conference in Oakland, California, June 27th, coming up. I guess it's this weekend. I'm gonna be giving a talk based on a recent Serious Inquiries Only about the conspiracy theories around the Trump assassination attempt and how there's unfortunately a lot of conspiracy thinking on the left now around that, even though it's just as unlikely as any other conspiracy theory. But anyway, yeah, Skeptical, check it out. SkeptiCalCon.com if you want to come see me. Come say hi. Lydia, I think, should be there too. I guess we're not 100 % sure with childcare and stuff, but hopefully going to be there. That is Saturday, June 27th, Oakland, California. All right, that all out of the way. I'm so excited to learn more about why Alito is like that. So we'll take our first break and then I'll be on with Matt, of course, and with Peter Kanellos.

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0:02:01 Matt: Our guest today is Peter Kanellis. He's an editor at Politico and has just written the only, and I'm going to say that, authoritative biography of Samuel Alito. We're very excited to welcome Peter to the show. Thanks for coming in. I'm excited to talk about the book.

0:02:12 Peter: Yes, thank you. Thank you so much for having me.

0:02:14 Matt: Can you just give some background here? I know you've been a journalist for a long time and you're coming at this as a journalist, I can tell from the book, what's your background and kind of what brought you to writing about the law?

0:02:22 Peter: I'm actually a graduate of law school myself and have written a previous book called The Great Dissenter, the story of John Marshall Harlan, America's judicial hero. And the common thread between that book, which looked at the man who stood up against and was the lone dissenter in all the cases that took away Black rights and that took away the right of the Congress and legislatures to address income inequality during in the Gilded Age. My Harlan book was an exploration of sort of the personal history that can affect the law and people's perspective on the law, and why John Marshall Harlan saw the law so differently than virtually every other contemporary of his. And now, of course, we realize that Harlan was correct. This is a similar exploration in that I consider the conservative legal movement, the rise of the conservative legal movement to be the greatest phenomenon, really, of our lives and careers.

0:03:22 Peter: And certainly that is true in the law, but it may also be true in politics, given the influence of the Supreme Court. Traditionally, when we talk about the conservative legal movement, we talk About originalism, we talked about sort of scandals and the role of money that played in the organizing of the movement. But I also think it's a social and and cultural uprising in some ways that came directly out of personal experiences from one generation of people who tended to be the sons and grandsons of European immigrants and who tended to come of age in the 1960s and 70s. So the book is called Revenge for the 60s, Sam Alito and the Triumph of the Conservative Legal Movement.

0:04:08 Peter: And it's meant to help everyone understand how we got gut here. For those who feel like we need to go on a different path, which are many, and feel like we're in a terrible place, which aren't many, it's what we need, to be able to move forward. It's what we need know to be to move foward, is where this movement came from, what its initial promises were, and how, in many ways, it has moved beyond those promises and violated some of those promises.

0:04:33 Matt: Why I was extra excited when I saw the title of this book, because it is a parallel biography in a way, you know, the whole middle of the book you're talking about, the rise of the movement that Albedo came up in, and that is now, as you said, responsible for so much of what's going on in this country right now. And I have a real soft spot for biographies, for Supreme Court biographries, especially. And one of my favorite questions in life is, how did you get that way, whatever way you are? This book really goes a long way. I mean, it's very much kind of a psychobiography.

0:04:58 Thomas: I feel like that's a question a lot of people have asked Alito or at least wanted to ask Alito.

0:05:01 Matt: Yeah, for sure. For sure. And you provide a thesis. There's a pretty strong thesis throughout the book about how he got this way. But I want to pick apart a few things here. You know, you were mentioning kind of the historic moments that Alito kind of was responding to, is in reaction to, and the things that the movement itself was in reaction too, and almost the way that this is perfectly timed for him to rise the way he did. But if you can give a quick summary of the different life events that actually were remarkably connected to Supreme Court cases in his early life and sort of where your thesis is drawing from here.

0:05:33 Peter: Well, first of all, the thesis extends beyond Alito. I mean, I think that some of these life events that we're going to talk about occurred with other leaders of the conservative legal movement, including other Supreme Court justices we have right now. So let's start with some. He was the son and grandson of Italian immigrants. His father came to the United States at the age of one. Both sides of his parents' families had tremendous obstacles, lived in poverty in an Italian -American neighborhood of Trenton. But his parents came out of it working hard, working jobs, working their way through college. They were very aspirational. Coming out of World War II, where his father fought for the U .S. I think the messages that Sam Alito received, he was born in 1950, were that the family had suffered tremendous hardships. They had also faced prejudice. And this was real, too. You go back and read newspaper stories about the Italians in Trenton, and they're very prejudicial stories and not flattering stories. There was also poverty. One of his grandfathers repeatedly lost jobs and the family kept getting evicted. His grandmother on the other side, on his mother's side, really never adjusted to the United States and was said to rarely leave her house. So there was real hardship, but they taught him that all of these sacrifices were for him so that he and his sister could make a better life. That's a familiar story, but it's a powerful, powerful story to tell to a young person. And it's something that sticks in their mind. You also have the influence of the Catholic church. He was a regular church going Sunday Sunday school oriented kid. His parents had moved by that time to Mercerville, which was a suburb of Trenton, but very, very close to Trenton. He grew up in what we would consider a stereotypical suburb of the 1950s. Very, very aspirational, but also very aware of the Cold War that surrounded him. So he was taught in his public schools about the greatness of America, the fact that America as this beacon of freedom against totalitarianism, against communism mainly, but also connecting that to fascism during World War II. He also, I think, internalized an idea of sort of citizenship that at that time was sort of a nonpartisan kind of ideal. But then he confronted as early as when he was a senior in high school, the reality of social change. That was when Martin Luther King was assassinated and the black community of Trenton rose up like the black community did in many cities, the resulting riot destroyed all of central Trenton, including where his father worked. And there's a very angry editorial that suddenly pops up in his school newspaper when he was the editor that expressed deep resentment, deep anger at these sort of anarchistic impulses that were taking over Trenton. But also he extended it to things like teacher strikes and the anti -war movement and things like that. Nonetheless, Nonetheless, he goes on to Princeton, believing, I think, at that time that, you know, he's done everything right for an Italian -American kid from Trenton and Mercerville. Going 12 miles up the road to Princeton was like a huge leap, a huge thing, a source of pride. And yet he confronted very aggressive social change there as well. He was in the last all -meal class to be admitted to Princeton and to arrive at Princeton. And as soon as women arrived in his sophomore year, the conversation on campus changed to things like, should women be allowed in men's dorms? Should couples be allowed to spend the night together? What happens if somebody gets pregnant? That conversation, I think, was very discomforting to him. Here he was seeing the sort of values that he took for granted coming out of his Catholic background being challenged in this way. Even worse was the anti -war movement because he was in ROTC. And this was at a time when the Nixon administration had extended the Vietnam War into Cambodia. Cambodia. Students in the spring of 1970 went on strike. Thousands of them refused to even go to class. Exams were canceled. And Friend said that was the first time they saw Sam Alito, who had been very quiet about his politics, start expressing anger. It was when exams were canceled and he took

0:09:52 Peter: It as a last issue, which is a little bit surprising because you don't have to see it that way. But he believed that the protesters were predominantly wealthy students from the eating clubs of Princeton, which again, a lot of people disputed, but that was his perception. He thought they were protesting because they thought their parents had the wrong values and that they could protest. They were actually welcoming the idea that exams would be canceled because they, the privileged kids could go to their dad's law firm, but he needed to get straight A's to show how worthy he was because he was still an up and coming kid. Some of that class anger, some of that defensiveness about his upbringing really informed his later politics and certainly his later jurisprudence.

0:10:37 Matt: For sure. And really, there is a strong through line. Mine. I'll just say up front, I have read both of the recent Alito books, including yours. Yours is the only one I consider to be a biography. Your book really humanizes Alito in a way that I really appreciate it because I want to understand who these people are. He can be kind of a cartoon character for us sometimes, even on the show when we're looking at his dissents because he's made himself kind of into one, but he has a person coming from a real background who's responding to real things that happened. Did you come to appreciate him as a person through all of this.

0:11:03 Peter: I came to appreciate the young Alito as a person and to sort of even, you know, understand him. I got the feeling that if I were there at Princeton alongside him, I would be sympathetic to him .I wouldn't necessarily have the same views or agree with him or probably would disagree on the war, but I would have respected and understood where he was coming coming from at that period. To the extent that you get a taste of his personality, he was somewhat of an unassuming person. I think that he was quiet, so it was very hard for people to read him. And perhaps we can speculate now that he Was quiet because he kind of felt like he had all the answers and didn't need to ask a lot of questions. Some people do believe that now, people who knew him in that era, you know, put that spin on it. But he was unassuming. He was not somebody who was sort of pushing his views. Now on the court, he's become somebody who pushes his views when people listen to Supreme Court arguments, they expect him to be sort of a caustic voice or a challenging voice, not overtly rude or crude, but somebody who feels like they have an edge and they feel like they know exactly what they're saying. And they've decided the case in advance. I don't think people saw that in the Sam Alito who was at Princeton, who was a Yale Law School, who, was a young lawyer in the Justice Department, or even for his 15 years on the circuit court. A number of people who said to me, you know, my God, he's a completely different person. I know him. This is not my Sam Alito was pretty substantial. There was a lot of people saying that. So I think that's part of the mystery of Alito is just just when when that change occurred, and why that change occurred.

0:12:52 Matt: And your book doesn't, and I appreciate this, you don't explicitly say it, but you certainly give a lot of factors that could account for it, like moving to DC, living in a completely different environment, getting inoculated, having what you call the phalanx of clerks around him. And I thought that was interesting too, that at the confirmation, something like 52, 53 clerks had signed off on a letter. Everybody pretty much had ever worked with him, said he was great and would be a good Supreme Court pick. Did you talk to a lot lot of those former clerks of this book?

0:13:15 Peter: I did, and I even had research assistants who talked to some other ones, too. There was some regret, there's no question about that, and a lot of surprise in terms of how he turned out to be on the Supreme Court. But they generally stuck by their initial assessment of him as being sort of nerdy and non-political, even on the circuit court. To some extent, when you look back, as I'm sure you did when you were reading the book and you saw all these testimonials that were submitted for him during his confirmation process, they were sort of playing to the Gang of 14, which was a group of moderate senators, Democrats and Republicans who had tried to set a benchmark where the filibuster rule, which was then sort of teetering on the brink of removal, it has since been removed. At that time, they Were trying to preserve it. And they were trying to say that they would only filibust a Supreme Court nominee in extraordinary circumstances. So Alito realized that extraordinary circumstances would be expressing a political preference or a point of view. That was what had gone wrong in people's minds with the Bork nomination when he was defeated. Needed. All of the testimony on his side and by him during the confirmation process was designed to show that he was a truly neutral arbiter under the law. He was a nerd. This man is shy. This man is not an activist. Nobody knows what his political views really are. But of course, if you go back and you look at his decisions on the circuit court, even though he was obliged to follow Supreme Court precedent, he managed to make it known in a lot of his opinions which which direction he thought the law should be moving in.

0:14:56 Peter: That confirmation process stands out as sort of a problem unto itself. The extent to which people can kind of put on a false face and still get confirmed. I don't necessarily blame Sam Alito for that. And I don't blame other nominees who are involved in that process. But there' s something wrong with the process itself.

0:15:15 Matt: Yeah, for sure. And I want to talk about the confirmation. Yeah.

0:15:17 Thomas: Especially now. Yeah. Back then it was I'm sure it looked great compared to now.

0:15:22 Peter: In terms of tension, yeah. Yeah.

0:15:24 Matt: The confirmation process at the time and in 2005, there were a couple of issues that came up that I wanted to talk About. First of all, I appreciate the way that you developed. I had no idea his father was so committed to being nonpartisan. That's a really interesting detail that he would bring that value home. His father was a public servant, right?

0:15:39 Matt: He was doing statistics, from what I remember, and policy analysis. His mother was so intent, even in carrying out the new voting, which, of course, is becoming extremely relevant now. But when he had to redistrict everything. He didn't really believe necessarily what the Supreme Court was doing, and he did it anyway because he's a public servant. It seems to me you're kind of showing there's this memo that he wrote to the Reagan administration to get into their good graces, which came up at his confirmation. And that seems to be what I could point to where he starts to break bad, where it starts to become obvious, to put it that way, that he becomes a political actor. It's his first sort of open statement of politics, and He's doing it because he wants to work in the Reagan Administration. But that came up pretty hard at the confirmation. And the other thing that I wanted to ask you about was the Concerned Alumni of Princeton Association, which we've talked about on the show before. He had signed up at least for a newsletter. I don't know the extent of his involvement. An organization that had some pretty repulsive views and statements, not just conservative, but very kind of retrograde. I just want to ask this because you mentioned ROTC before. You said he did it because he supported what they were doing to protect ROTCs, even though it's unclear from the contemporary publications they were even doing that. So I guess kind of the big omnibus question here about these two things that came up at the confirmation, the Reagan letter and how that kind of played out and what that tells us about him. And then the CAP associations and how he tried to disavow it. We can't really know what was in his mind at the time, but I don't know if I buy the explanation about RTC. Do you?

0:15:39 Peter: He changed his posture when he realized that identifying as a conservative would help him to achieve his goals, help him to get ahead. During the 1950s and 60s, when he was sort of under the influence of his father, who you're right, was a New Jersey state official and rigorously nonpartisan, I think not only was the message coming from his father that nonpartisanship is the appropriate public face for a person. Expressing political opinions is something that is better kept to private. But I think that people felt, and he felt, that to achieve what he wanted wanted to in the law. He needed to rely on legal credentials only, on sort of what the ABA would consider legal acumen, improving your underlying skills, not expressing your views. What happened, I think, is that a group of very ambitious people who came from the kind of supercharged immigrant family background that Alito had realized during that period of the late 60s and early 70s when they were in college, a lot of them at Ivy League colleges, they realized that they were at odds with their generation, that they were suddenly not the cool kids and that they were not going to get ahead simply by showing their legal acumen and their academic prowess because their classmates think that there's something wrong about them, that they're not on board for the social changes of that era, that they were accused of being racist. They were accused of being sexist. They They were accused of being prejudiced. And if you take those ambitious people with that kind of idealistic sense of I'm going to achieve something important for my family here in America and then add this other challenge, implicit challenge to them that they accept the political and social changes of the 60s and 70s, they suddenly realize that they were facing a tremendous obstacle to success. And when you look at it that way, it seems almost inevitable that you have to create another path to succeed. And that path eventually became the Federalist Society and it became the Reagan administration, especially the Ed Meese tenure as attorney general. What you were saying, Matt, about how he changes his views when he writes his memo to go work in Ed Mease's inner circle in the Office of Legal Counsel, I think is correct. Act because Ed Meese said, we don't just want skilled lawyers here. We want true conservatives and we want people who are authentic conservatives and legitimate conservatives, not just people saying they're conservative because they want the job. So they forced Sam Alito to write this memo where he talks about William F. Buckley. He talks about Supreme Court decisions he's disagreed with. He talked about his critique of the Warren Court, which he felt had gone too far in certain things. And he says that he was a member of concerned alumni of Princeton. That one is very problematic because everybody associated with Princeton understands that that was the movement organized in opposition to women and people of color entering Princeton. And it wasn't just organized on some sort of principled or procedural grounds. It was organized by the alums of the 1920s and 30s who

0:20:08 Peter: Were frankly prejudiced. They just thought having all white males was great. That was part of the character of Princeton and they wanted to maintain it. And that quickly became an untenable viewpoint and sort of a far right viewpoint. There's not a whole lot of evidence that Sam Alito was a card carrying member of CAP. It's possible that he kind of exaggerated his sympathy for it because he wanted that job with Ed Meese. Also, because he had been a public school kid and had come from a place where there were women in his class, some people said he may have had problems with women's issues, but he didn't necessarily have problems with having women in His classes and learning and being educated alongside women. He may have embraced Kapp in order to prove that he's a true blue conservative, but he may not have been as active as some people thought. Now, the confirmation process, when this memo that he wrote to get into the Reagan administration came to light, that became a key issue, right? Right. And Ted Kennedy, who was at the time still the sort of leading Democrat fighting against the conservative legal movement, he and his staff, I know because I was there, I covered it and all that. They really believed that they had the goods on Sam Alito, that this was proof that Alito was outside the mainstream, that the gang of 14, even they would see that this Was an extreme nominee. But Alito very skillfully and successfully addressed these questions by disclaiming and rejecting everything that Kapp stood for and saying, as you repeated, that the only reason he had joined Kapp was because they were defending ROTC. It's also a suspicious thing because they Were not that active defending RTC, but maybe his conservative anger came from the treatment of ROTc or something like that. But he was so sort of mild -mannered and so quietly articulate about this that his apology seemed sincere and seemed straightforward. Now, Kennedy kept boring in, and Kennedy had all of these publications that Kapp had produced that had outrageous views. I mean, they were all but celebrating the idea that AIDS was affecting the gay community. It was that extreme. And Kennedy was sort of pounding him one question after another, after another. And at this dramatic moment, Alito's wife, Martha Ann,

0:22:36 Peter: Breaks down in tears behind him during the confirmation process. They quickly have to suspend the hearing and she's escorted to another room to compose herself. And the Kennedy people felt like that was the moment they were defeated, that instead of the headlines being Ted Kennedy has revealed all these shocking things about Sam Alito, the question became, did Ted Kennedy's questioning go too far? Did the Democratic attacks on this man go too far and be too abusive? And his poor wife is even reduced to a puddle of tears over this. So there There was this climax to the hearing, and Alito essentially won the climax.

0:23:17 Thomas: White women's tears, huh?

0:23:19 Matt: Very effective. Yeah. I really appreciate that we framed the confirmation and explained it in the book. It was a really good reminder of how that all went down and the way that we lost, I think, an opportunity to get to know him better. I was thinking about the fact that I really look forward to reading your Harlan book. I haven't gotten a chance to yet, but you have written, obviously, Harlan, one of the great dissenters and Alito is a dissenter. He certainly dissents a lot. It seems to me, again, not having read the Harlan book, you seem to be canonizing him, which is fine. I mean, he's somebody who deserves full credit for where he was, the stance he was taking for the life that he lived, for the way that he saw the world. It's probably easier when you're writing about a historical figure who's been dead for quite a while than somebody who's sitting on the court right now. But if Harlan is a hero for the way that you dissent, do you see anything heroic about the way Alito was dissenting and the way he's planting his flag right now? Do you see any kind of through line there. I was wondering about why you chose to write about these two Supreme Court justices more than anything else.

0:24:10 Peter: Well, man, I would challenge your view. It's actually easier to write negative things about people in the past in history and to write positive things about living people. It's like doing it the other way around can be a little bit problematic.

0:24:24 Matt: Sure, good point. Good point.

0:24:25 Peter: I would say the common ground between these two themes is that people believe that the law turns on neutral principles or on political currents or social changes in society. And it really doesn't. I think it changes based on who's on the court and what their own experiences and values were. And so both of these books explore the personal and the political and the legal and and how all of that combines in different ways. And in Harlan's case, it combined to make him a visionary on the court. Sam Alito is not a dissenter in the way that Harlan was. Harlan was sort of the lone dissenter against a majority that had very firm views. Sam Alito, is a dissentor against all of those movements that we talked about from the 60s and 70s, but he's actually been quite successful on the Supreme Court. And his specialty has been getting five votes for very controversial positions. It's very noteworthy that in all of the major changes that have been wrought by the conservative legal movement, for one thing, the polls haven't changed. People's views on abortion aren't different than they were 50 years ago. People'S views on affirmative action aren't difference. PeopleS views on voting rights aren't differen. What changed was the composition of the court and the way that the justices are are framing these issues. And Alito's been strikingly successful in these ways. So if you think about the Dobbs decision, John Roberts would have been the first person to get a chance to try to pull together a majority on that. And he clearly believed that they could accept the Mississippi restrictions, which banned abortions after the first trimester, without overturning the underlying right to abortion that's in Roe v. Wade. So you can imagine John Roberts would have used all of his pull to try to get even one other justice on board because there were four on board for the Roberts position. So if he could get Amy Coney Barrett, if he Could get Brett Kavanaugh to accept his position, they could have settled that case and moved on. He could not do that. Next in line would have been Clarence Thomas, the most senior conservative in the majority in that case. And he took a position that was so extreme, it frightened off the other conservatives. He said any substantive due process should be overruled, which meant

0:26:52 Peter: Goodbye to contraception and goodbye to gay marriage, goodbye to many of the things that people now rely on. And the other conservatives weren't willing to go that far. It was Sam Alito, in a way that is deceptively skillful, who was able to render in the beginning of that position, he defines abortion as being a unique and morally challenging situation, which is a way of distinguishing it from all the other social issues. And I think that was the key probably to getting that crucial fifth vote. There was somebody else there, Gorsuch or Kavanaugh or Amy Coney Barrett, who wanted strongly to distinguish abortion from other social issues to get away from that Clarence Thomas position. Alito found a way to do that. Alito also found a way to sort of refute the arguments that Roberts and others would make in favor of stare decisis. We should be sticking with precedent that it's an embarrassment to the court to overturn these rulings, that it should only be done in extraordinary circumstances, etc., etc. And much of that opinion is dedicated to Alito's assertion that Roe v. Wade was at odds with the Constitution from day one. That's his mantra in that opinion. And it's probably the way that he got the other conservatives to agree to overturn this landmark precedent that had actually been reconfirmed in multiple cases. So I credit Sam Alito with actually being successful in the majority on the court and not through his defense.

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0:28:32 Thomas: That's interesting. Just as a non-lawyer covering it since, I don't know, 2016 or so, I feel like there was an era prior to Trump where Alito, just every single decision seemed like no matter what the opinion was, it would be something I feel like no one could disagree with. And it would be Thomas and Alito dissent. And that was that was like my kind of layperson's memory of how it went before Trump. My perception of it was more that the court changed. Is there anybody I guess Roberts would be the one person who was there long enough enough to maybe have kind of changed his mind. But other than that, do you see it as a persuasion or more just like the court got three new fundamentalists?

0:29:11 Peter: I think that you are somewhat right about talking about the sort of pre -Trump era, So there were times when Alito was very much in the minority and dissenting. He wrote of strong dissent, for example, in Bergefell, the gay marriage case that was very, very passionate. Your depiction of what the cases looked like was probably right. But I would also say that during that time, even before the Trump justices came on board, you saw his skills in moving the law to the right in cases like the Hobby Lobby case. Talk about an improbable case where you could, and this was before the Trump justices were on the court, where you Could assert that a fundamentalist Christian owner of a large corporation based on his values could deny contraception coverage to all of his employees based on on his own personal religious views, and that this would be defended by the U .S. Supreme Court. Now, he found a very circuitous route to do so, seizing on a statute that had been passed during the Clinton administration and things like that. But it reflected a lot of work on Alito's part to get five votes for that. He had to bring old moderate Anthony Kennedy on board to get to that But that was a turning point. Ever since then, you're entirely right, Thomas, that the court has gotten more conservative and there's been more support for Alito's viewpoint. But that Was the start of his asserting religion as a counterpoint to racial discrimination and gender discrimination and laws intended to protect certain minorities in society. Alito has greatly expanded those rights now that the Trump justices are there to support him. But as I was saying in discussing the Dobbs case, even among the conservative justices, I think there's a lot of room for persuasion and movement. And the difference between a truly conservative opinion and an opinion that is yielding a conservative result, but through a kind of moderate means, moderate path, those differences matter a lot in the law. And Alito has been quite successful in moving the court to the right, whether it was in his early days when he was not part of a block, a majority block, or today when he is part of a conservative block.

0:31:36 Matt: And that brings me actually to a question I really wanted to ask you about. You state pretty directly that you think that Samuel Alito is the most emblematic persona of the conservative legal movement. And it's an interesting thesis. I guess maybe I've bought the idea for a long time that he's just diet Scalia. They were just getting the reduced Scalia. And you were also at the same time, of course, profiling Leonard Leo, who was of course behind a lot of the conservative legal movement and certainly channeling a lot the dark money that's going into it. So why Alito? That's just an interesting choice. And I think you're right. I've more been thinking about it over the last week or two, and certainly we're talking about it now, but why does he get that title?

0:32:11 Peter: Two things. One is I probably went into the research thinking like you did that he and Antonin Scalia had a lot of common ground, but I think they actually were quite different. It was sort of a democratic shorthand that kind of backfired on them and was prejudicial and sort of anti-Italian to say, talk about, they called them Scalito, you know, trying to suggest these two guys had the same views. They're actually quite different. They're very different in terms of personality. Antonin Scalia was an upbeat gadfly kind of personality, you know? Somebody who came upon his views honestly, who enjoyed the sort of give and take of debate, who tended to be the life of the party. I think that that's the difference between an earlier generation of conservatives who, for better or for worse, came upon their their views organically, naturally, and were individuals. And the later generation, which are the product of the conservative legal movement, and there's an enormous difference, if you imagine it on the court, between somebody who is accustomed to expressing their views and willing to disagree with people and agree with people in equal measure, and somebody who feels as though they've been appointed for a specific reason, and they're part of a group that is going to sort of put guardrails around them and sort of police their positions as they move through their career. Alito was emblematic of exactly the kind of judge that the leaders of the conservative legal movement, including people like Ed Meese, wanted to produce. Meese talked about creating a pipeline of judicial candidates, conservative judicial candidates for the Supreme Court, so that you wouldn't have the phenomenon of Republican appointees who then would turn out to be much much more liberal than people thought. He wanted people with a very documented, unwavering record. When Alito's turn came, he was first passed over for John Roberts and then was passed over a second time when Chief Justice Rehnquist died and Roberts was moved into Rehnquist's chair. That left the Sandra Day O 'Connor seat open. But remember, George W. Bush chose Harriet Myers, his White House counsels for that seat. And Harriet Myers was a totally different person from Alito, and nobody was really clear on her judicial views. She had been a Republican. She'd been a conservative. She's been a city counselor. She was a female pioneer in Texas law. She was the first woman to be the managing partner of a major firm. She was the president of the State Bar Association. She was a real leader and a woman of some accomplishment. The conservatives immediately realized this This is exactly what they had been organizing against. They didn't want presidents appointing people that they felt were political allies, but then would turn out on the bench to be quite a bit more liberal. They torpedoed Harriet Myers. They portrayed her as a Bush crony who was totally unqualified. They made fun of her. They considered her hapless. They raised serious concerns about her acumen and ultimately forced her out. Democrats, I think, also missed a chance to embrace Harriet Myers, we can talk about that separately. But the message that the conservative legal movement sent to George W. Bush is you have to pick somebody from our pipeline. And Sam Alito was the obvious choice because he'd been 15 years on the circuit court bench. You almost never get a record that long. And he had hardly ever wavered, never wavering really from the conservative line. What the conservative legal movement has tried to produce, which is a reliably accurate assessment of how how judges and justices are going to behave on the bench and keeping them within a certain set of guardrails, Sam Alito is a perfect example.

0:36:02 Matt: I agree. I have been thinking a lot about your thesis. I've had the same thoughts about Clarence Thomas because Clarence Thomas is very much a product of being Clarence Thomas, of being the exact sequence of things that happened to him. When you learn about the things that happen and how he responded and the person he became, it makes a lot more sense. And of course, ClarenCE Thomas' experience is about as far from an American experience from mine as I can imagine. Alito's is much closer to something I can imagine, having been raised more like him and similar background. The title is pretty provocative, Revenge for the 60s. I agree with your thesis. I think it makes a lot of sense. As soon as I saw the title, I said, well, that makes sense. This is a pretty ideological place to start a book. Did you start with that title or with that concept, or is that something that developed as you looked more into Alito? I guess I'm wondering how much of that was baked in as you were writing.

0:36:44 Peter: A little of both. I mean, I think it started very much as a thesis, but then obviously becomes confirmed the more that you realize and the more that you talk to people. And obviously I come from a longstanding journalistic tradition where you're always open to change your mind. That's almost an ethical precept. And there were some things that I changed my mind about in relating Alito's story. The revenge for the 60s idea also works on two levels, because in one sense, you know, it's irrefutable that the conservative legal movement grew out of a reaction against the Warren court. It was the Warren court's changes that prompted conservatives to organize in the way that they did. In Alito's case, the Warren Court decisions, you hit him personally, right? His mother was a public school teacher who would use Bible verses in her lessons. And the Warren Court said, you can't do that. That violates the Establishment Clause for religion. His father was this politically neutral research director for the New Jersey legislature. And when the Supreme Court, the Warren court, said you have to have equal districts to maintain equal voting power for every voter, it fell to Alito's father to try to equalize population in these districts that had existed, especially in the case of the state senate for decades and where individuals had built power, entire power structures around these legislative seats. So for his father to be the guy who had to redraw all these seats was politically perilous for somebody whose job depended on maintaining both Republican and Democratic support. Alito has talked about being a teenager and being up in his bedroom and hearing the sort of clack, clack of the slide rule as his father was trying to equalize the numbers of these districts, and he felt it as the Supreme Court intruding into his house. And he probably felt that his father considered his job to be on the line because of this unwanted assignment to try to equalize the population in these districts, which was

0:38:44 Peter: Sure to piss off many of the people that he needed to keep his job. So Alito felt the intrusion of the Warren Court. And I think other conservatives also felt in their own personal ways that their values were being attacked by the Warren Court. So that part of it, I think, was irrefutable. The part that emerged more strongly was the extent to which Sam Alito was shaped, as were other people of his age group, by the two big prongs of coeducation and the anti -war movement. Those both came home to roost during his time at Princeton and continued during his time at Yale Law School. And, you know, I think he felt that he was being maligned in this process and that he needed to fight to preserve his values. And so, yes, what we have seen since then has been, in a sense, a revenge for the 60s.

0:39:40 Thomas: I feel like my title would have been less charitable. I think it would have been Sam Alito, the world's tiniest violin. I don't know where that would go.

0:39:48 Matt: There's so many of these grievances. And obviously, we've talked quite a lot on the show about how Machia is grievance politics and how the conservative legal movement is grievances -based and this alternative power structure they've built up, whether these grievances are credible or exist or not. And I thought it was great that you opened and closed the book. You bookended on the Columbus statue, that he was there when the statue was dedicated and then he objected when the statue was taken down. I thought that was a great choice just as an author, but kind of what was your thinking there? What was the Columbus significance for you?

0:39:48 Peter: I think it perfectly encapsulates the arc of Sam Alito's life and career. When he was nine years old, you can imagine him in his little jacket and tie. There are many pictures of him, by the way, from that era, and his parents always had him perfectly turned out, him and his sister perfectly turned-out, formal-looking, serious children. You can imagine him joining in the celebration as the Italian community in Trenton, in the neighborhood of Chambersburg, erected a statue of Christopher Columbus. Now, Alito has correctly and somewhat movingly spoken himself about how Columbus was a great beacon to the Italian people, That the Italian people in Chambersburg were treated as foreigners, as non-citizens, as riffraff when they first emigrated to the United States. But their point of pride against the Protestant elite of the town was our countryman, Christopher Columbus, was here in the New World before your ancestors came over on the Mayflower, so to speak. It was their way of stating that they were belonging. The fact that Sam Alito deeply sentimentalizes the erection of this statue and what it meant to the Italian people, it shows that the depth of his absorption in the past and in his own past and his sense of having a mission to sort of uphold those values and to defend the position that his parents and his grandparents may have taken at other points in their lives. He remembers this as the culmination of decades of Italian-American pride and commitment to get the city of Trenton to put a statue up of their person, their emblem. Now, you flash forward 40 and 50 years and people's perceptions of Columbus are completely different. The residents of Chambersburg, the Italian neighborhood, are now a large mix of Central Americans, a very, very large Central American population, a very large Dominican population, and a very large African American population now living in Chambersburg. Italians have largely left. There are a few remaining. There are a few Italian stores remaining and a restaurant or two, but it's very much non-Italian right now. And many of these people felt that Columbus was a symbol of European oppression against non-white people, especially against Central Americans, since that's where Columbus had landed. And so they began this process where the statue was routinely defaced and people poured red paint all over it and things. So ultimately, Trenton, led by an Italian -American mayor, made the decision to take the statue down, that it was the wrong symbol in the wrong place. It was in a community now of people who absolutely did not appreciate Columbus. But Sam Alito, from his perch on the Supreme Court, still felt the injury of this and felt the anger of this, and could not accept that the community had changed and didn't want Columbus. He saw it as a slap at the Italian people, that the victims here are not the Central Americans. The victims are the Italians who identify with Columbus. That, in my mind, is sort of a microcosm of much of his jurisprudence. Now, last year, we remember the Montgomery County, Maryland case. The county of Montgomery County had come up with a series of storybooks for kids that included some gay characters, a

0:43:49 Peter: Gay uncle, you know, a gay kid, a gay marriage taking place somewhere in the story. And they initially had a policy of warning parents that these stories were going to be used so that conservative parents who objected could pull their kids out of class. They then changed their mind and said, wait a minute, isn't this stigmatizing these stories where you announce that there's a gay character in the book and some of the kids walk out of the room because their parents won't let them hear the story? What message does that send, for example, to the children of same -sex couples or to kids who have gay relatives that they're very close to? It stigmatizes gay people. So they changed the policy. But conservative parents objected and took their case all the way to the Supreme Court. And it was Sam Alito who wrote an opinion saying they must restore the policy of warning potential religious objectors about these books that include just the existence of gay characters that just talk about them existing in the world.

0:44:46 Thomas: This is the one where he couldn't even read a children's book correctly, where he read it as the main character being upset that her uncle was gay and then like being like, oh, and she had to be taught a lesson. It's like, no, she's upset because her uncle's not going to be too busy. She's worried about losing time with him.

0:45:04 Thomas: And it's like it's just how could your job is interpreting words like very importantly. And you can't even read a children's book.

0:45:14 Peter: But I think that you can interpret from that, that Sam Alito is saying it's not the kids who have gay family members who are going to be discriminated against in this policy. The people being discriminated against are the religious kids, the kids who have traditional values and religious values. It's a very, you know, for some people, a very sort of counterintuitive view. Like, wait a minute, the group to be protected here is not the LGBTQ community or sympathizers of the LGBTQQ community. It's religious people with traditional values. And there's a reflection of that in Alito saying the Central Americans and African Americans and Dominicans in Chambersburg, they're not the victims here. The victims are the Italian-Americans who revere Christopher Columbus.

0:46:00 Matt: Who wasn't even Italian, he was Genovese, but right.

0:46:03 Thomas: You don't even live there anymore, according to what you're saying.

0:46:06 Matt: All right, that too. That takes me to a question I want to ask you about. Alito is forever going to be associated with the phrase deeply rooted in history and tradition, obviously from Dobbs, but he borrowed that from Glucksberg and that language goes way back to the 30s, I think with Cardozo. And it plays exactly into what we're talking about here, about his reverence for tradition, for being a literal conservative who's trying to conserve things allegedly while being a radical at the same time. Your book kind of leaves us a little open. I just wanted to ask you, is there any example of this test so far, which I want to point out also the deeply rooted in history and tradition test has generally been used to preserve rights, not to remove them. I guess this is a new direction here. Are you aware of an example in which that has cut against him or where he's been forced basically to be a neutral empire and go the other way from something he believes,

0:46:49 Peter: That he's acknowledged.

0:46:50 Matt: Right?

0:46:51 Peter: If you read something like the gun cases about the individual right to carry, and Alito wrote the case that applied the individual right to to the states. The initial case was written by Scalia with Alito's support. Reading that case, it's essentially a battle about history and tradition because the dissenting opinions by Stevens and Breyer essentially accept originalism as the standard. They're saying to the conservatives, okay, history and traditionally, this is what we're going to look at. There is no history and traditional individual right to carry. The history and traditions here was for states and communities to have their own militia. And that the reason this provision was in the the Second Amendment, and the Second amendment itself was created, was to make sure that states and localities could have militia and the federal government would not usurp their power. Justice Scalia, and then later in the second case, Justice Alito, tried to take the view with fairly scant evidence, very scant evidence, that, oh no, it was well established. The history and tradition of having an individual right to arms was just well established, it something they kind of asserted. I think that if you go back and read those cases, you would say at the very least that Stevens and Breyer were as persuasive as Scalia and Alito. And certain people would probably look at it and say that they were much, much more persuasive just on the grounds of history and tradition. But obviously conservatives did not see it that way. I think what's happened with the whole idea of sort of history in tradition is that they're responding to what you could say would be a 1950s and 1960s view of what the founding fathers were. The presentation of the founding father's that was conveyed to a generation during the Cold War that saw them as godly people, saw them as small time Americans who had muskets over their fireplaces and things like that. And so this image has emerged, I think, in the minds and is sort of cemented in the the minds of many conservatives, that the founding fathers were deeply religious. The founding fathers were gun owners. The Founding Fathers followed a conventional, traditional social life and social path and had very conservative social views. And I think that's largely an invention in some ways. It's their idea of not what the Founding fathers actually were and not what what their actual political positions were, but sort of what this nostalgic view of them conveys. And so they're upholding something that is probably questionable on its face, questionable in its time, you know, that 1950s view of who the founding fathers were. But I think it can be deeply held as a belief.

0:49:44 Peter: And I think that when you're Sam Alito and you agree with the outcome of a case to assert that, of course, it was common ground, it Was a well -established tradition in the case that he wrote by the framing of the 14th Amendment, the individual right to carry was a deep part of the tradition of American life. He just sort of asserts that. And I think he believes it. But I don't think that necessarily makes it true.

0:50:07 Matt: Think my favorite quote that you got out of the people you talked to was from Andrew DiPolitano of Fox fame who went to law school with him, who said, I just appreciated the simplicity of this. He just said, he's a conservative guy who wants conservative outcomes. I think that's a really good way to put it. It couldn't be much simpler. And I did want to ask just as a process here, how many people in total did you talk to for this book?

0:50:26 Peter: Probably over 100 in total.

0:50:28 Matt: So you feel like you got it. You talked to classmates, you talked anybody who would talk to you, basically.

0:50:32 Peter: Yeah, we talked to, I mean, again, I'm very glad to have had two full-time researchers working with me to find a lot of these people. But we talked to probably 20 classmates at Princeton, but they ranged from people who were his close friends or reasonably close friends and knew him quite well. To people who had radically different experiences than his, because I thought it was important in the book to show that there were other people who were going through the same era and facing the same lessons and the same challenges who came out in very different positions, right? You don't want to say, oh, everybody who was Catholic and Italian and grew up in that era felt the same way. No, there were plenty of people like Jeff Laurenti, who's quoted in the book and had a very similar upbringing to Alito's, who ended up on the other side of the political spectrum and saw things completely differently than Alito. Same thing for the women in his class. Same thing for African-Americans. We talked to African-Americans in Trenton who are of his same era and had obviously a very, very different experience of things than his. Then later in his career, talking to people who were aware of his times in the U.S. Attorney's Office and him working with the Solicitor General in the first Reagan term, the Office of Legal Counsel in the second Reagan term, and then being on the circuit court. We talked to people at all those steps in his life. In addition to the people we talked to, there were documentary sources. So some of the people who had passed away, teachers, for example, and Princeton professors had taken stances at the time of his confirmation and had been interviewed extensively about him. We also were able to include those voices too.

0:52:09 Matt: It really shows.

0:52:13 Ad: [Ad break 3 — ad music]

0:52:13 Matt: Clearly, as we talked about at the beginning, you've written a biography of someone you would admire, that you clearly find to be someone who's worthy of great historical reverence. And I'd agree with you, obviously. What's it like writing a book about someone you're more critical or skeptical of? I mean, it comes through in the book that you are more critical and skeptical. Obviously, I want to say this is a journalistic book. You're presenting, I think, the most sort of objective view of your thesis you can, but you're obviously still a person. How is that process?

0:52:36 Peter: My interest in writing this book was to illuminate the conservative legal movement and to tell everybody how we got to where we are. The process of watching that transformation in society is not one that is geared towards supporting one side or the other. I mean, there were plenty of times, I think, when liberals were in the wrong or liberals behaved inappropriately politically or cluelessly politically and undermined themselves. And there's a significant current in the book of liberal mistakes going along. And there were times when in writing about Sam Alito, I came away with respect for his position or belief that he has shown a certain amount of legal acumen. There's also times when there's something that you can say is very admirable about standing up for your people, standing up for your history, standing up for your past. Even in that Christopher Columbus statue anecdote. I put one spin on it saying that it was, I think, something that encapsulated his intense conservatism, but other takes on it would be that it shows that he never forgot where he came from, right? So you can look at that positively. I viewed myself as a historian, almost. Even though you're writing about the current day and we're writing about issues that occurred in our own lifetimes, my responsibility was to history to sort of tell it like I saw it, not to render my personal opinion on Sam Alito. That would be That.

0:53:03 Matt: True. Right.

0:54:02 Peter: When it came to John Marshall Harlan, anytime you're writing about history, your perspective is framed by what has happened since in history. And in the Harlan story, much of the resonance in the Harlan story comes from the idea that he's been proven right, that he was the voice in the wilderness, and now he's the dominant voice. And what it means to have posthumous vindication, that's the power of the Harlan Story. It's like when people sort of stand by their values and then are proven right. John Marshall Harlan had in his mind the history and posterity and the future of the United States. He was a big thinker about how political ideas and legal ideas shape the society of the future for good and for bad. It's very poignant and very powerful that he is now remembered as being right, as being prescient, as Being prophetic. And he's admired across the aisle, which very few jurists are these days. I look at them as just two different charges. One is documenting in a sort of journalistic and historic way this amazing phenomenon of the takeover of the conservative legal movement of American law. And the other one is trying to draw lessons for how a person who we now perceive as being a hero, what were the roots of that wisdom? Where does wisdom in the law come from? From somebody who

0:55:27 Peter: Was on the bench 130 to 150 years ago, we now know how all of those issues turned out so we can effectively credit him and then explore how it was that he was right when everyone else was wrong.

0:55:41 Matt: And it's a little harder to reach Harlan's former clerks, I imagine, right now.

0:55:46 Peter: That is true. It's a very, very different challenge. You have to look for all kinds of obscure records and news accounts and things like that.

0:55:53 Matt: So, yeah, I look forward to reading that. And I really appreciate your time today. I have so many more questions for you, but we're going to be talking to you again on June 28th for our book club. Really appreciate you giving your time for that as well. And we've got a lot of people looking forward to talking to ya.

0:56:04 Thomas: Sam

0:56:06 Peter: Excellent. Thank you so much, Matt.

0:56:08 Matt: Well, great. The book is Revenge for the 60s, Sam Alito and the Triumph of the Conservative Legal Movement. I can personally recommend it. And I appreciate your work on this book. Thank you so much.

0:56:52 Thomas: Alito, the world's tiniest violin.

0:56:55 Matt: How did you get that way, Whatever way you are.