Steady under pressure

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MYRNA BROWN, HOST: Today is Thursday, June 18th. Thank you for turning to WORLD Radio to help start your day.

Good morning. I’m Myrna Brown.

LINDSAY MAST, HOST: And I’m Lindsay Mast.

Coming next on The World and Everything in It: one of the Supreme Court’s most influential justices.

Justice Samuel Alito has served two decades and authored the majority opinion in the 2022 Dobbs v. Jackson Women’s Health Organization decision, one of the court’s most consequential rulings.

BROWN: Mollie Hemingway is senior editor of the Federalist and is a Fox News contributor. She’s also the author of a new biography called Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. 

She spoke recently with Nick Eicher about Alito and his influence on the court.

NICK EICHER: You call him the Justice who reshaped the Supreme Court and restored the Constitution. Those are two really big claims right on the cover of the book, Mollie. 

What did Samuel Alito do that others did not?

MOLLIE HEMINGWAY: The court had become this place where people just put their politics in the place of legal reasoning. They would just say, "We wish things were this way, so we're just going to say it's in the Constitution."

Alito, who's been on the court for 20 years, has reshaped it into an understanding that you're not allowed to just make it whatever you want to be, but you are constrained by the constitutional limits that are there. 

And then he's also just been a very powerful, steady, courageous voice for doing difficult things such as overturning Roe v. Wade, which everybody recognized, left and right, even if they liked abortion, they recognized it was a bad decision. He had the courage to overturn that and other things that needed to be taken care of as well.

EICHER: Where does that come from? Intellect? Temperament?

HEMINGWAY: Certainly known for his intellect, but I think in the case of Dobbs, that was more an issue of courage and prudence. You needed to have both of them, too. You need to be courageous, because everyone who had tried to do it previously had not been able to withstand the intense pressure campaigns that come along with the effort. And you need to be prudent in getting together and keeping together a majority to do the difficult work that needed to be done.

EICHER: I’m curious about that second part, where Alito succeeds in keeping the majority together. How does that happen?

HEMINGWAY: Alito is known for not being too particular about opinions that he's the author of, that he needs other people to be, to be with. He takes their edits, he's happy to include what he might think is an unnecessary phrase, but if it's important to someone else, he's generous with his prose. And that actually is necessary, because each of these justices cares deeply about their own particular issue, and they feel strongly about it being included, particularly on landmark decisions.

EICHER: Dobbs is respected as a reasoned decision, a good legal decision, but there was nothing novel, there was nothing particularly new to people who've been in the pro-life movement or who've been involved in the legal work around the pro-life movement. 

You argue in the book that a lot of people knew that Roe was wrong from the beginning and weak law, bad reasoning, but nobody ever did anything about it. Why do you suppose no one ever did anything about it?

HEMINGWAY: There had been so many efforts to overturn Roe since 1973. I actually go through the history in the book of how it was an accident from the very beginning. 

The pressure campaigns from people who support abortion are almost unbearable, and they had previously been unbearable for members of the court. There had been a lot of attempts to overturn Roe, but people would not be able to withstand that the entire media complex was arrayed against them, and then the well-funded pro-abortion movement as well.

EICHER: Yeah, I remember the Casey decision which predates Justice Alito by at least a decade, and I remember it now as an example of the staying power of the Roe abortion precedent at the court—even though, again, there was this kind of embarrassment around Roe as an unprincipled decision. 

And I was writing a lot about abortion at WORLD at the time, and I remember thinking, you know, "Maybe the court finds its courage here." But not only did it not; the Court doubled down.

HEMINGWAY: Republican voters and Republicans had realized there was a problem with the Court by the early 80s at the latest. They start putting together an actual movement to put better justices on the Court, and yet, for some reason, they still kept failing. 

Casey gets to the court in 1992. By that point, eight of the justices were appointed by Republicans, and the one Democrat was Byron White, who had been one of the two dissenters in Roe v. Wade. So everybody knew this was finally going to be overturned, this thing that never should have been passed. And instead, there was a major media blitz, there were major political factions in play, and the Court was unable to withstand the pressure, and they end up reasserting Roe, saying that that you can't fight about it anymore. And it began another 30 years of trauma at the Court.

EICHER: And Casey shows that recognizing Roe’s weakness is insufficient. You needed a majority that was willing to withstand the pressure. So by the time Dobbs had arrived for argument and decision, what had changed? And why was Alito the justice to carry it across the finish line?

HEMINGWAY: It doesn't matter if you have one or two or three good justices if you don't have a majority to do the difficult work of handing down that decision. 

When you look at who was on that Dobbs majority, it wasn't Chief Justice John Roberts—it was Thomas, Alito, and the three Trump appointees. They had not even been on the Court that long, and they were able to withstand the pressure. I know people sometimes have disagreements with each of the justices, but that showed amazing fortitude and courage for them all to keep with that majority. 

I mean, on the one hand, everyone knew that Roe was wrong, and so it shouldn't take that much to overturn bad precedent, but given the pressure campaign, they all should be regarded for what they did. And also, I think you know, the people who did the heavy lifting, which would be Justice Alito authoring the decision and keeping everyone together, deserve particular praise there.

EICHER: Mollie Hemingway is author of the book Alito. 

Mollie, tremendous work!

HEMINGWAY: Thank you.

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