Justice Samuel Alito on Originalism, ‘Speechifying’ Colleagues, and Media Caricatures

0:00A t-shirt and jeans, mac and cheese. Some things in life are an obvious match, like RIAs and Schwab Advisor Services, the number one choice for independent advisors. The difference is so obvious, it's Schwabvious. Learn why at schwabvious.com. From the opinion pages of The Wall Street Journal, this is Potomac Watch. Welcome to a special edition of Potomac Watch. I'm Kyle Peterson with the Wall Street Journal Editorial Board. We're taping today from the Natalie Cornell Rehnquist dining room at the United States Supreme Court, joined by Justice Samuel Alito, who after 20 years on the nation's highest court, is publishing his first book, So Ordered, an Originalist View of the Constitution, the Court, and Our Country.

0:47Thank you for having us, Mr. Justice. Maybe let's start on page 24 of your new book. You write that in cases on the meaning of the Constitution, constitutional provisions. You sometimes envision a colonial era tavern, maybe one near your hometown in New Jersey, where travelers are gathered around a fire reading the text of this new thing, the First Amendment, trying to determine what it means. For listeners who are not yet inculcated in originalism, Why is that the right mode of analysis? Why do cases in 2026 turn on what they would have taken freedom of speech or establishment of religion to mean in 1789?

1:26Well, the Constitution begins by proclaiming we the people. So the theory behind our Constitution is that here the people have sovereignty. The people govern themselves. And the people who were responsible for the adoption of the Constitution, the original Constitution without the amendments, were those who attended as delegates to the state ratifying conventions. So these were more or less ordinary voters, ordinary people, prominent people in the community, perhaps, but still ordinary voters, ordinary people. Now, when it came to the Bill of Rights, that was approved by Congress. Those amendments, the first 10, were approved by Congress, sent to the states for ratification, and the legislatures of the states ratified those provisions.

2:24So on page 24, what I'm talking about is an image of people who would gather around a tavern or some other place. They're reading a newspaper. It has a text of the Bill of Rights. It says, Congress shall make no law bridging freedom of speech or the free exercise of religion. There shall be no unreasonable searches or seizures, et cetera, et cetera. They would read that. they would think, what does this mean? The text of the Constitution, their understanding of it, and perhaps they would make their thoughts known to the legislators who were going to be voting on this within a short period of time.

3:08You have called yourself a practical originalist. In the introduction to the new book, you seem to settle on the term working judicial originalist. What do you mean by that distinction? Practical originalist was just something that popped into my head in response to a question. Working judicial originalist is kind of a mouthful, but what I'm trying to get at is that I am a judge and I am interpreting the Constitution while I am deciding real cases involving real disagreements between real people or entities. And that's different from that duty and that job interpreting the Constitution in the context of a case where it's going to have real world consequences is different from what is being done by, let's say, an academic who simply wants to know what was the meaning of this provision.

4:07One case you talk about in the book where that distinction comes out is this 2011 ruling in a case called Brown. The question was whether states can restrict violent video games for minors. And during oral argument, your colleague Justice Antonin Scalia was pressing about whether there's a violent content exception to the First Amendment. and you mischievously interjected, quote, I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them? Which brought some laughter to the court, but what's the distinction you're drawing there? Is it that recognizing, being willing to recognize some limits of abstraction?

4:50Yeah, the Constitution contains some general rules, And sometimes we can determine what would have been understood at the time of the adoption of the provision with respect to the application of a rule to a specific factual situation. If it was the kind of factual situation that could have been envisioned at that time and perhaps had already come up in court cases, we can perhaps know with a degree of certainty how it would have been understood to apply at that time. But when you have to apply a general rule to something that nobody could have possibly envisioned when the Constitution was adopted, it requires an exercise of judgment.

5:38And you have to think about how the rule best applies to this new situation. So in that case, the question was whether it was permissible for a state to regulate the sale of violent video games to minors. One way of looking at it was what the court adopted in an opinion by Justice Scalia, and what the court said was that there were descriptions of violence in written literature at the time of the adoption of the Constitution, and it was not thought that that speech was unprotected. For example, if you read the Iliad, you can read a passage where Achilles chops off the head of one of the Trojans defending Troy.

6:31And that was the end of the analysis. And what I said was, I don't think it's quite that simple because a violent video game is perhaps so different from simply words on a page that perhaps there's a stronger argument there for regulating it with respect to minors. This is a 2019 ruling called Gundy. The question was whether Congress had impermissibly delegated too much power to the attorney general, the executive branch. You had four justices saying that it was fine, that this was not an impermissible delegation. Justice Brett Kavanaugh had not joined the court yet, so it was an eight-member court.

7:13Hard to know from the outside how much effort there was to avoid a 4-4 deadlock. You had three justices in dissent saying this non-delegation doctrine should be used. And then Justice Alito, kind of in the middle, this is part of what you wrote, very short opinion saying that you would support non-delegation arguments, but because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment. So is that a concern, kind of a working judicial originalist concern for consistency in the law or the signal that lower judges might take if they would read an opinion and think, ah, we're doing non-delegation again now.

7:52Non-delegation is very important. Congress has the responsibility under the Constitution and the sole power under the Constitution to make the law. And unfortunately, in some instances, Congress has given away that power to executive agencies to actually make the law. At the end of any session of Congress, if you were to stack up all the laws that Congress passed and then stack up next to them, all of the regulations that have been issued by the executive agencies, the stack for the rules issued by those agencies would tower over what Congress has done. And in some instances, Congress enacts vague provisions simply because they don't want to make either side of a controversy mad.

8:42So I think the non-delegation doctrine is important. It is admittedly hard to tell where do you draw the line between what is permissible and what is too much. In a subsequent case called, I think, Consumers Research Council, I thought we had the opportunity to revive the non-delegation doctrine. This was a case in which Congress actually gave away the power to impose a tax. And that is a core power that Congress should not be permitted to delegate. In this case, it was a very unusual situation. And what I was trying to do was to tell my colleagues, we should do this. But what I don't want to have done is for us to say there's a non-delegation problem here, and then congratulate ourselves for having done something meaningful without tackling the serious non-delegation problem that occurs in much more typical instances.

9:43Another topic you take up in the book is the push by some on the right toward common good constitutionalism, the arguments that originalism, as has been practiced now for many years by conservative judges, is to value neutral. Give listeners a sense of how you read those arguments? Well, originalists, and I'm an originalist, look to what the Constitution was understood to mean at the time of adoption. So value judgments were made at that time by those who were responsible for the adoption of the constitutional provisions. And we do not think that we have the authority to override those value judgments or impose our own value judgments on the country.

10:33There have been justices and judges who disagree with that, and they would, in effect, make the Constitution mean what they would like it to mean, what they think it should mean. Originalists reject that. However, sometimes originalists, I think, have gone too far and suggested that the Constitution itself, and therefore decisions that interpret the Constitution, are value neutral. And that is not correct, because there is a system of values built into the Constitution. I think we have a good Constitution. I think we think it generally produces good results. Common good constitutionalists, I think, have provided a service to originalists by reminding originalists not to go too far and proclaiming that the Constitution is value neutral and that the results that are produced by constitutional decision making are not a matter of concern.

11:42I want to put words in your mouth. You seem to have express is that focusing on the common good in this way that is called for would provide judges too much discretion in the way that originalism was supposed to forestall. So you write, almost be careful what you wish for. This approach can easily be used to justify decisions that proponents of common good constitutionalism would not welcome. If constitutional, if those who are interpreting the Constitution say that we have the authority to decide what would suit the common good, what would serve the common good, and override what the Constitution itself says, then that would bring about exactly what the movement toward originalism was meant to prevent.

12:37The proponents of common good constitutionalism, I think, generally have in mind a particular set of values. They are traditional Western values, the traditional values of Western civilization, and they would like decisions to be made in accordance with that. But if common good constitutionalism were adopted and every justice had the authority to make the Constitution mean whatever that justice thinks would serve the common good, the system of values that would be imposed by those decisions would not necessarily be values that common good constitutionalists share. Are originalist cases getting trickier?

13:23It seems as if there was, for decades, a lot of pent-up agreement by originalists, textualists on cases, including the demerits of Roe v. Wade, the right of a president to have constitutional authority to fire and give orders to heads of executive agencies that there's no fourth headless branch of government. And are the many varieties of originalism now going to become more pronounced as the court works through all of that originalist homework, if I can put it that way, and we start to move into new legal ground. Some of the originalist decisions, I think, were not difficult calls. So I do not think that it was difficult to figure out that the reference to liberty in the 14th Amendment adopted in 1868 was not meant to include the right to have an abortion.

14:26In 1868, most of the states made abortion a crime. And it's inconceivable that they would have passed the Constitution, ratified a constitutional amendment that undid all of that and then continued to keep those laws on the books for many decades after. So in my opinion, that was an easy originalist call. Now that originalist arguments are being raised routinely, much more difficult questions are coming before us, and we are receiving mountains of historical research. A lot of good work has been done, and also some arguments that I think are ultimately fallacious are also being presented to us in briefs.

15:15That's what lawyers do. So I hope you identify what you call some worrying cracks in the Constitution. One of them is the volume of binding rules for Americans that are now coming out of these agencies and the executive branch. We've talked about that a little bit with the non-delegation. Another is what the founders would have called faction, the idea that we have an enormously diverse country of 340 million people trying to live together in a republic. And you seem to focus on the idea of colorblindness, the court's cases, for example, in students for fair admissions, as an answer to that challenge, that we need a government that treats everyone equally.

15:57It seems like that point is often missed in discussion of those cases over racial preferences, affirmative action. We are an enormously diverse country. We have people of every race and every ethnic background. And more and more, we have a population consisting of people whose ancestors belong to multiple, to different races or different ethnic backgrounds. That's what we have always had. We have always been a country like that, and it's continuing. But if we divide ourselves, I think we should all treat each other as Americans, as people who are equal. And race and ethnic background should not be relevant factors in government decision making.

16:50If, on the other hand, we divide ourselves up into various racial groups and various ethnic groups, and these groups compete with each other for advantage, that, I think, is a recipe for turmoil. The same thing is true about freedom of religion. I think everyone has the right under our Constitution to practice religion or not practice religion as they choose. And it is important that everybody be treated equally. Hang tight. We'll be right back in a moment.

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18:36There's a lot of fun stuff in the newsletter that you can only read in the newsletter, and I don't want you to miss any of it. Sign up for free expression today. We'll see you in your inbox. Welcome back. One of the points that you take up is what I think you seem to see as a relatively new phenomenon of difficulty letting people live and let live. The idea that there is almost a moral injury to someone over here if someone over there is practicing a religion, traditional values in ways that are perceived as askance to the majority secular point of view. We have seen more and more religious liberty cases.

19:17Some have involved instances in which the majority has unfairly imposed burdens on members of a minority religion. Something else that has emerged recently, which I think is a relatively new phenomenon in American society, is the emergence of clashing moral codes. We've always had a religiously diverse population. But as Tocqueville said, way back in the 1830s, although Americans disagree and sometimes disagree sharply about what their duties are to God, they do not, Catholics and Protestants and Jews do not disagree among themselves very much about how citizens should treat each other. but with the emergence of a new moral code that has changed and I wrote about this in my dissent in the same-sex marriage case there are those who continue to believe that marriage is an institution that should be reserved for relationship between one man and one woman and they think that any other understanding of marriage is not right, is immoral.

20:43On the other hand, there are those who think that anyone who says that same-sex marriage is immoral is a bigot and is immoral for airing that view. So there's a clash here between two moral codes, And that is creating religious liberty issues. How much do you worry about the attacks on the court as an institution? Claims that it is illegitimate. It seems like that kind of rhetoric is rising in tenor, maybe not day by day, but campaign by campaign. The rhetoric that is used in discussing the court and justices of the court has changed dramatically. and it has become harsher. Unfortunately, I do believe that there are those who are attempting to influence the court's decision through verbal intimidation.

21:51And I think that if they cannot achieve that, they would prefer to discredit the court as an institution and perhaps sap its power rather than have it continue to decide cases in the way that it has been deciding those cases in recent years. So I do think that there has been, and there is a continuing attack on the court from some quarters. And this is different from anything that I saw before in my lifetime or that I can think about based on my that I can identify based on my understanding of history. One parallel is the Impeach Earl Warren billboards that were put up at one time. Is what's new the persistence of it, the consistency of it, the relentlessness of it, maybe?

22:46True. But what is perhaps most different, I think, between those situations is the degree to which people in positions of responsibility and prominent institutions have lent support to those efforts. I don't think there was much of that back when there were billboards saying impeach Earl Warren, at least not throughout the nation. But the situation now, I think, is different. One aspect of this has been the debate, let's say, or the emergency docket, the interim docket, whatever term you want to use. I know you don't like the shadow docket. It is a kind of a sinister, meant to sound sinister. You've said that over time, the emergency appeals of an administration whose policy is being blocked, maybe nationwide, comes to the court and says, are we really supposed to sit on our hands for two or three years as this case proceeds?

23:50because we think we're right on the law. Has that upward trend in emergency work behind the scenes at the court only continued? And is it just my imagination or is there more writing in those rulings in those cases than there used to be? Well, everything that you've said is true. The number of emergency applications has gone up very dramatically and the amount of writing has also increased. I could produce a graph and I could start in the latter years of President Obama's administration and the number of emergency applications in significant civil cases began to go up. During my first 15 years on the court, almost all of the emergency applications were applications to stay in execution.

24:37But applications in civil cases were quite rare. So the graph would start to go up the last two years of President Obama's administration. It would go up further, more sharply during President Trump's first term. It would continue to go up during President Biden's administration when some very important matters like the forgiveness of student debt came here on emergency applications. And then since the beginning of President Trump's second term, the graph would be very sharply up, you know, like an 80 degree angle. So this is a new development and it has transformed our work. In 2025, we had almost as many emergency applications as we did have, as we had merits cases.

25:32So this is a big change. And it's being produced by a dynamic that I think is easily identified. Presidents of both parties have become increasingly frustrated with Congress, their inability to get their legislative agenda enacted by Congress. And so they've decided to use their own powers to the maximum extent, try to get things done with executive orders, administrative rules, forget about laws and statutes enacted by Congress. That use of executive power by presidents has brought a strong response by those who disagree with whatever the administration has done, whether it's the Biden administration or the Trump administration, it's promptly challenged in court.

26:21The lawyers are savvy. They select the district where they think they have the greatest chance of succeeding. Their prediction is generally pretty good. District court rules in their favor. And often, as you mentioned, if what the district court does in a preliminary injunction, which is an order that's issued before the case ends, if nothing is done about that, that will continue for two or three years. And so it will eat up a big chunk of the president's administration. So the case comes quickly up to us. And that's why we have been peppered with these. And it continues. The leak of the draft of the Dobbs decision in the case overturning Roe v.

27:10Wade, many justices have spoken about how that affected the court at that time. Doubtless security procedures were adjusted. Are there still aftershocks of it that are affecting the court today, do you think? We feel the effects of what has happened since the release, the leak of the Dobbs opinion and then the issuance of the opinion. We still feel the effects of that. Our lives have been, our daily lives have been transformed by the vast increase in security measures that have been implemented. We have never discovered who was responsible for that leak. It was an enormous breach of trust. It quite predictably made the five of us in the majority targets of assassination for a period of nearly two months.

28:07and indeed an attempt was made on the life of Justice Kavanaugh for the purpose of altering the decision in the Dobbs case. Two months went by between the date when that was leaked and when the opinion came down. That was a considerable delay. the decision the majority opinion was virtually unchanged from the one that was leaked to the one that was issued and so what held up the ultimate release of the decision was the time that was taken up by the preparation of the dissent so we don't know who the leaker was and that is a cloud, so to speak, over the atmosphere of the court. Is it true, as has been reported, that there was a hazmat incident a few days after the release of the Dobbs decision?

29:07A staff member opened an envelope and some powder fell out? You know, there have been so many security threats since then. My memory of specific ones is not too sharp. But has the phalanx of security around the individual justices, have the threats abated at all as time wears on? I mean, I was surprised to read, I forget if it was in this book or another interview you were giving, that justices in your tenure used to drive themselves to the grocery store. The threats have continued and they are still, it's still a significant volume and some of them are, some of them are serious and the court has responded to those by greatly increasing security measures of all types.

29:55Another piece of this campaign is efforts, almost political campaigns, to get justices to recuse from cases in instances where the allegations do not seem to fit the classic case, the classic threshold for recusal. We're taping this on Thursday. This week, the court announced that you were sitting out Monday's first case. This is Suncor versus City of Boulder. The court didn't say why. Can you shed any light on your reasoning? Or if not, how do you think about the wisdom of explaining to the public the specific details for recusals? I don't think it's something that should be done routinely, and I could go into that, but I'll skip over that.

30:40But there are instances where I think it's appropriate and wise for a justice to explain why the justice is not recusing in a case. And I have done that on a number of prior occasions. Determining whether to recuse is a very serious responsibility. We have an obligation to sit unless we are disqualified because unlike a court of appeals where the recusal of a judge doesn't change the number of jurists who are sitting on the matter, here it does. And it's unfortunate. Now, why did I do it in the Sun Court case. There are two provisions of our Code of Conduct, which I support and actually helped to draft, that apply in the situation where the recusal question involves a justice's ownership of stock.

31:53The first question that has to be asked is, does the justice own or the justice's spouse? own stock in a party to the case, does the justice have an interest in the outcome of this particular case? And the answer to that question in the Suncor case was no, we do not own any stock in any party or affiliate of any party in the case. Usually, that's the end of the matter in cases involving stock ownership. However, there is a second question, and that is whether the justice's financial interest might be substantially affected by the outcome of the case. Usually, when it is, as I said, when it involves the ownership of stock, that's a pretty easy question to answer no, because it's very, very rare for one of our decisions to have an effect on the price of publicly traded stock.

33:01And that's why I did not recuse when we decided to take the case. However, as the date of the argument approaches, and I immersed myself in the arguments that were being made on both sides, I thought through the question again. The question is, what would a reasonable person aware of all the relevant circumstances think and ultimately I came to the conclusion that a reasonable person aware of the fact that my wife and I have a substantial investment in some companies in the oil and gas field and this is a case in which the the petitioner and the petitioners amici are arguing that a decision against them would start a snowball rolling down a hill, which could ultimately lead to devastating consequences for the oil and gas industry, that under those circumstances, the particular circumstances here, and the arguments that were being made, I should recuse.

34:07I did it reluctantly, but I thought that was what I ought to do under those particular circumstances. This kind of gets back to what I was asking earlier, the wisdom of explaining in detail is many of these calls for recusal do not look like bonafide concerns about judicial ethics. They look like efforts to force a justice off of a case because they think that justice might go the other direction. And does that explain some of the mysteries, perhaps, the reluctance of some of the justices to, in writing, explain which party, which case, why in every instance? It would be an unfortunate precedent for us to explain in every instance why we are recusing.

34:51Your father was an English teacher for a time, and you've said that he taught you how to write by meticulously going line by line through your writing assignments. What does your drafting process look like? When I'm assigned to write a majority opinion, first of all, I will have talked about the case thoroughly with the law clerk who worked on the case for me. And we will have done that at every stage, before the argument, after the argument, before the conference, when the court votes. And after the court has voted, I will tell my law clerks what the vote was and also go over the reasoning of all of the justices.

35:37So if I'm assigned to write a majority opinion, an opinion for the court, I can't just sit down and write what I would write if I were writing only for myself. I'm writing for a group. So I have to take into account what others would like to say and would like not to say. So I will go over all of that with the clerk. And then I will ask the clerk to do an outline, a very short outline, to make sure we have all of the arguments in the right places. And we're going to make the right argument for each point. And we're going to rely on the right authorities, just what the opinion will, the outline of the opinion, the skeleton of the opinion.

36:21And then I'll go over that with the clerk after the clerk has done that. Maybe we'll go through a couple of drafts of the outline. Then I will ask the clerk actually to flesh it out and give me a draft of the opinion. And I will sit down at my word processor and I will edit very heavily. And so what ultimately comes out is my own language. But having the material there makes it more, is more efficient. Now, if it's a dissenting opinion, I generally use a different procedure there. I'm more likely just to write the dissent myself and then ask the law clerks to go over it to make sure that it's factually correct and legally correct.

37:08Do you have any particular writing language pet peeves? Is there a list your outgoing clerks give your outgoing clerks? Like, whatever you do, don't use impact as a verb. Yeah, I have a lot of pet peeves. I don't like to use colloquialisms. I don't think that a judicial opinion should be phrased the way people send short messages to each other. I think it's generally not wise to make too many references to popular culture because we hope that these opinions are going to be read decades from now. And people decades from now may have to read them and they're going to be scratching their heads if it's couched in the language that is simply confined to this particular era.

38:04Hang tight. We'll be right back after one more break. This episode is brought to you by Charles Schwab. Decisions made in Washington can affect your portfolio every day. But what policy changes should investors be watching? Washington Wise is an original podcast from Charles Schwab that unpacks the stories making news in Washington right now and how they may affect your finances and portfolio. Listen at schwab.com slash Washington wise. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker. Play the Opinion Potomac Watch podcast.

38:46From the opinion pages of the Wall Street Journal, this is Potomac Watch. Welcome back. Do you have a favorite opinion of your own? I mean, justices have sometimes said it's a dissent because they're not trying to negotiate over particular points or hold five votes together. But is there one you look back on and you think, you know, that still sings? The most important opinion I've written was the opinion in the Dobbs case. So that, in terms of importance and value, I hope that would be number one. There have been other opinions that I've just involved curious in, you know, interesting situations.

39:27So I wrote a dissent involving vanity license plates. And at the end of that writing process, I think I knew more about the history of license plates in this country than anybody else. Originally, people made their own license plates. And they could make them out of leather. They could make them out of wood, whatever they wanted. And I detailed the whole history. I went through the whole history of the development of these various vanity plates. In some states, the selection of possibilities is quite enormous. So that was one that was a lot of fun to write. Well, if you need a second book idea, maybe the history of license plates, maybe there's more to that.

40:12That'll be a big seller. Have you played around with these AI chatbots any? I mean, you say in the book, I think we all know that AI, like it or not, is going to change our work. how much we can't know right now. I believe that was a 2024 speech. They've gotten markedly better since then. So I understand. I have not personally used them. I know there are those who have experimented with having them write opinions, draft opinions. I haven't done that. But I think they're very good. I did ask my clerks, just as an experiment, to ask one of these, either Claude or ChatGPT, to give me questions to ask at a student moot court where I was on the panel just a while ago, last week.

41:09And they were very good questions. They were very good questions. And they included at least one or two questions that seemed to make reference to something that I had said before. So this was very impressive. When you say there are those who have experimented with having them write opinions, do you mean in this building or you mean elsewhere? No, not in this building and not to my knowledge before a case was decided. it. I heard a judge on one of the courts of appeals gave a talk that I heard, and he's, I think, more knowledgeable about this perhaps than I am. Well, he is more knowledgeable than I am, but he, as an experiment, he, after he had written an opinion, the opinion had been issued, he fed all of the briefs and other materials in the case into one of these and asked to have an opinion written for him.

42:08And he said it was pretty good. Other than enormous piles of briefs, or maybe they're on an iPad now or a screen, what else are you reading? What's your media diet like? During the course of the term, I have to read so many briefs and articles and historical materials and statutes that unfortunately my reading for pleasure is limited. But what I've started to do and I was doing this over the summer, is to go back and reread classics that I read many, many years ago, sometimes in my later high school years or college years. And I found that very rewarding and enlightening because I now see things in those books that I could could not possibly have understood at the time i think you to understand some classic literature you have to have uh had certain life experiences and i don't know how authors are able to write some of that at a young age but at least for me as a reader i couldn't really fully appreciate them uh until you know before i had certain life experiences any particular titles that come to mind uh yeah i was reading uh james joyce's dubliners and there's some in there that were so moving to me now and i don't think i i could have understood them then and then i i also re-read The Brothers Karamazov, and I know I didn't deeply appreciate it as deeply as I should have when I read it when I was maybe 19.

44:02Well, I don't know how much coverage of the court you read, but you may not be surprised to learn that one leitmotif is that you are a brooding figure. Here's a passage from a book by Joan Viskubich of CNN. You wear a heavy cloak of grievance as if perpetually wronged, destined to be misunderstood. And I just wanted to get your reaction to that. I mean, we seem to be in good humor here, but I know the Phillies won last night, right? So does it depend on the Phillies? Well, it can have a heavy influence. So they are playing right now. And when I go back to my office and I see what the score is, I may be elated and I may be less happy.

44:45I think that's very unfair, and it is part of a process of caricaturing the justices with whom the people who are writing these things disagree.

45:03Nothing similar is written about some of my colleagues who have issued blistering dissents blistering dissenting statements from the bench made what can only be described as very angry comments during oral argument None of that is written about any of them. But this is written about me. Now, what do court watchers, so to speak, see of me? They see me at oral argument. And that's basically it. oral argument to me is a serious business. It's supposed to help us make good decisions. And so I challenged the lawyers. I argued a lot of cases. I expected to be challenged. I actually welcomed it because I thought that I could, by responding to the challenges, I could win over a justice or a judge who came into the argument, perhaps disposed to rule against me.

46:17But I don't treat oral argument like a moot court. I don't treat it like a show. I don't play to the audience. I don't try to get laughs. I don't try to show how smart I am. It's pretty businesslike, and perhaps that's what they're referring to. Do you have a view on the changes to the oral argument set up since COVID? It seemed to be longer. One academic study saying the average argument has gone from about 60 minutes to 90 minutes. One positive, we've heard a lot more of your colleague, Justice Clarence Thomas, lately. I'm not sure if there are differing views in the court about the length or the seriatim questioning justice by justice, whether that's helpful.

47:01Some of what has happened, some of the changes are beneficial. And the fact that Justice Thomas is now asking questions and everyone can see that he is a brilliant jurist and is fully engaged with the intricacies of every opinion of every case that's that's a great benefit and that over that overrides a lot however i do think that there have been other changes that are not beneficial i would be happy to hear oral arguments for days on end if i thought that all of that argument would contribute to better decisions. But I think that in many instances, and I do believe this is something on which there's very substantial agreement among the justices, maybe not unanimity, but a lot of agreement, that many of the arguments are going on far beyond the point at which the additional arguing is making a contribution.

48:08We've also seen a change, I think, in what the justices are saying. Back when I was arguing cases in the 1980s, the justices were not only asking fewer questions, but they were asking questions. It was a sentence with a question mark at the end, or maybe two sentences with a question mark in the end, but not a big speech. And now, maybe as a result of live streaming, we're getting speeches. We're getting speeches by lawyers that seem to be aimed not necessarily at convincing us, but playing to some constituency. And we're getting a lot of speechifying by the justices. It's very helpful as a reporter who sometimes covers the court and doesn't happen to live close to this building to be able to follow along.

49:04But it seems like you think that has changed the tenor of some of the arguments. Is there a possibility maybe that that change might be reversed? Oh, I don't think there's any plan to reverse the live streaming. And I think it is good for the reason that you mentioned. It's good that people have the opportunity to hear our arguments. And not only that, a transcript is prepared and is available very shortly after the conclusion of the argument. Once upon a time, the transcripts did not identify the justice who was asking a particular question. Now, if I ask a question, it's attributed to me and you can read it in the transcript.

49:46So I think all of that is good. What do you think are some of the biggest misunderstandings about the court, the role of the justice that circulate in the public? Well, I'll give you one big one and one small one. But isn't that big and small are not really the best adjectives. The first is that I do think a lot of people believe that we are just making policy decisions. And I don't blame them for being happy when the end result of a decision is something that they like and unhappy when it's something that they don't like. But I think there's a tendency to think that we're making policy decisions and also a tendency to think that there is a encouraged by some in the media and others maybe that there's a partisan element to that.

50:45There is not. So that's the first, and that's damaging. The other is I think a lot of people don't appreciate that most of what we do is pretty technical. Most of the questions do not involve the interpretation of the Constitution. They involve the interpretation of statutes or rules. In those cases, many of these technical cases, they're important to the parties and they're important to those who are affected by the decision. but they're not something that engages a lot of public passion. If we went through the cases we're going to hear starting next week, most of them involve statutory interpretation and issues that, as I said, they're important in their way, but they're not the blockbusters.

51:38Do you think a similar dynamic is a focus after the fact on which cases are big based on whether they're divisive, whether they're 5-4s or 6-3s? It seems to make less news when there is a unanimous Supreme Court issuing a religious liberty decision written by your colleague, Justice Sonia Sotomayor, even though if that had gone 5-4 or 6-3, there would have been headlines about this big divisive religious liberty case. I think that's true. And there's a tendency among some in the media to view everything through a political lens. So it's a victory for President Trump or a defeat for President Trump or a victory for President Obama or a defeat for President Obama, when in fact, those cases involve constitutional questions and legal questions that will have a continuing effect regardless of the administration in the White House at the time.

52:44To that point, I think of the presidential immunity decision, and I think it was Justice Neil Gorsuch who said during that argument, we're writing a rule for the ages. I mean, is that a decision that you think has been misunderstood by the public in that kind of way of affecting the president who happens to be the occupant of the Oval Office at this moment in time, but the rule is going to be carried forward? Well, that's a prime example of that. Yes, that was a rule for all presidents going forward. It was not just a rule for President Trump. since the beginning of president trump's second term there has been some talk about the possibility of criminal prosecution of some former presidents for official acts and that were that if that were to be contemplated if there such were to be brought, the rule of presidential immunity that applied to President Trump would apply to all of those other former presidents as well.

53:58Let me ask one more on the practical originalist approach. Does it vary or does it express itself differently based on whether you're cobbling together a majority or whether you're writing in dissent. And I ask that based on the birthright citizenship case, Trump v. Barbara. The rule of the majority seems pretty clear. If you were born here, with some minor exceptions, you're a United States citizen at birth. A couple of justices in dissent wanting a domicile rule, if you permanently live here, if your permanent home is here, then you are a citizen at birth. Can you explain your rule? It seemed to be based on what obligations a citizen might owe to a foreign country, dual nationality.

54:44And is that a place where you think about the practicality of the rule maybe differently based on writing a dissent for yourself? That's a big question, and it has a number of components. If you're writing a majority opinion, as I said, you have to try to keep a majority, or it's very valuable to keep a majority, and that may involve some compromises, and you have to decide how far you will go. So when we decide a case and we base it on a rule or a principle, it is beneficial to have a clear-cut principle or a clear-cut rule. Those who have to apply the decision going forward like that generally, it makes things easier and simpler for them.

55:40So clarity and simplicity are virtues, but they are not the only virtues. And there are situations in which there is a choice between a clear-cut, simple rule that is also wrong and bad on the one hand and a rule that is more complicated and more difficult to apply and doesn't as clearly apply. The boundaries are less clear. I think a good rule and a correct rule and a good rule is better than a clear-cut, simple, bad rule. You said in a speech some years ago, I believe, that one of the most difficult things as a judge or justice is knowing how much to bend. Explain what you mean by that in those conversations that take place between the justices about do we have five votes for this?

56:40Yes. When I draft a majority opinion for the court, I put everything into it. And when I send it around, I think it's the best I can do. and what I dream of getting very quickly are eight memos from my colleagues saying, that is perfect. Do not change a comma. Alas, it doesn't always work out that way. And I will start to get memos that say, I will join if you take this out, if you reword this, if you put this in and one after the other, after the other, they come in and I see my beautiful work of art being chipped away. You know, I'm exaggerating, but you see the point. And so you have to decide how many changes can you live with at a certain point if I am asked to transform my opinion into something that I don't agree with or something that I think is wrong.

57:51No, I can't do that. I can't bend to that far. But if I would like the decision to go this far so that it provides guidance for a broader range of cases, clearer instructions for a broader range of cases, and yet it starts to get narrowed and narrowed and narrowed. you know, this, I start out with this, this much, okay, that may be good. That's the, as most like, that's the best I can get in this case, and it would be a positive contribution. Thank you all for listening. You can email us at pwpodcast at wsj.com. We'll be back tomorrow with another edition of Potomac Watch. Thank you, Justice Alito, for helping us better understand you, your jurisprudence, and the Supreme Court of these United States.

58:37Thank you. Thank you for giving me this opportunity. This episode is brought to you by Charles Schwab. Decisions made in Washington can affect your portfolio every day. Washington Wise from Charles Schwab is an original podcast that unpacks the stories making news in Washington. Listen at schwab.com slash Washington Wise.