Transcript of How An Overlooked Justice Undid Roe v. Wade New

The infamous leak of the Dobbs decision overturning Roe v. Wade violated the crucial policy of confidentiality within the Supreme Court. It also put the conservative justices at very real risk amid intense outside pressure and even an assassination attempt.

Now, new revelations about what took place behind the scenes during that tense period has shined a troubling spotlight on the polarization of the high court.

In her new book on Justice Samuel Alito, who penned the Dobbs decision, Molly Hemingway details details the fraught lead-up to the release of that landmark decision and highlights the way the conservative justice has modeled the way forward for the court.

I'm Daily Wire Executive Editor John Bickley with Georgia Howell. This is a weekend edition of Morning Wire.

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Joining us now is Molly Hemingway, editor-in-chief of The Federalist. Molly, great to have you on.

It's wonderful to be here with you.

So your book just came out on Justice Alito, and it's already making headlines, actually. First, what surprised you most while reporting this book, something that really changed how you personally saw Alito and the court?

Well, I interviewed close to 100 people for the book, and these were Supreme Court justices and federal judges, law professors, really high-level people. And the thing that was the most revealing for me was about the reaction of the liberal justices to the Dobbs leak. So when that leaked, the justices who signed on to the Dobbs decision, this was the one overturning Roe after 50 years, they had their lives threatened. They had to wear bulletproof vests. They had to be moved to secure locations. And the liberal justices actually slow-walked their dissent, quite intentionally so, and against the wishes of their colleagues, to kind of drag that out until the very last minute, even though their colleagues' lives were under threat. And I just thought that was, you know, something— obviously nobody knew that was going on behind the scenes, and it was just really surprising to learn that.

Yeah, honestly, I was shocked when I first read that coming out of your book. Um, what— can you unpack it for us? How exactly did they slow walk that process?

Okay, so the Dobbs decision was disseminated to all the justices by early February, and that meant that the dissent could be written you know, if it weren't already written by that point, they could fine-tune it. And yet it leaks on May 2nd, which is 3 months later. And they then meet in conference— the justices meet in conference— and they are shocked to find out that the Dobbs decision, which needs both the majority opinion and the dissent in order to be made public— they were shocked to find out that those justices did not have anything close to being ready to have it come out. So some of the justices who were dealing with these daily threats at their homes, which led to assassination attempt on Justice Kavanaugh, they said, "Can you speed it up?" So they say, "Ah, well, maybe we'll get to it by June." And then when they finally get the dissent together by June, they include a completely gratuitous and unnecessary footnote to a case that was still being worked on. And so it didn't come out for another 3+ weeks. Now, when you're dealing with daily threats every day at your home, your wife, your husband, your children are facing these.

That's a really long time period to go through when you know your colleagues could have done it much more quickly.

Again, truly shocking. And we all remember that it was really dire for the conservative justices, particularly Kavanaugh. That was very alarming. Have we seen anything like this before in the past or known about this happening in the court before?

There have actually been quite a few leaks from the court. They're usually not that important, you know, things coming out years out after the fact, or maybe the results of a decision will be leaked to a, you know, friendly reporter or something like that. But this was the first time in history that a complete decision in draft form had been released to the public. It was absolutely unprecedented. But you saw the news just this past weekend that there are more papers being leaked in order to advance a cause. And it appears that, again, you know, a big complaint of the liberal justices is that the court isn't playing along with lower court federal judges doing this national injunction game, and they don't like how they're handling the emergency docket. So a leak comes out to help the liberal justices. And so, you know, it's kind of shocking and alarming and also probably the result of what happens when you don't hold people accountable for leaking in the first place.

Right. A lot of complaints that no one was ever found or held accountable for the previous leak. In terms of the slow walking, I feel like we're seeing that again by the left side of the court. Is that correct?

Well, I was very interested to see this latest reporting that the liberal justices are slow walking the decision about the racial gerrymandering case that they heard in October. A lot of people have been wondering, why have we not gotten this, you know, case from October resolved? Everything else has been resolved. What's the holdup? And there's reporting that they're once again slow walking. And the reasoning there, a lot of people are speculating, is because The longer that the decision takes to come out, the less states can respond to the result of that decision. And it is believed that it would really hurt Democrats if this decision were going the way people expect that it will be going.

A lot of focus on Ketanji Brown Jackson. No, no hard accusations, but a lot of people speculating after her comments publicly criticizing the shadow docket. That maybe it's coming from that side. Again, we don't know anything solid. Uh, Alito, of course, the focus of this book is on Alito. And you argue that he's often kind of overlooked in terms of his importance to the court over all these years. Why has he been so essential? And then why was he so essential in the Dobbs ruling?

So a lot of times Americans and conservative Americans really love to focus on Justice Scalia, that sort of father of originalism, or Justice Thomas, who's, you know, widely regarded as one of the country's greatest Americans. But Alito is, unlike those two, very reserved, very shy, and he's kind of flown under the radar. A couple years ago, when I was interviewing a bunch of the justices and other people for a book I co-authored with Kerry Severino, they were all saying, why does nobody pay attention to Alito? He's the giant on this court. And I knew I wanted to cover him and explain the significance of jurisprudence, and I try to show that Thomas is a very libertarian-type originalist, and he is so principled, and people admire that. Alito is a more conservative originalist. He's more pragmatic and practical. They work together very well, but they are different, and I think Alito is a model for Americans in how he shows you can be simultaneously extremely principled and also thinking about strategy, how to win, how to secure wins for the country that you care about. In the conservative movement right now, we see extremes. People saying, "The only thing that matters is to be principled," or, "The only thing that matters is to win at all costs." In Alito, you have a man who shows those don't need to be at odds at all.

And that's an interesting model for a lot of Americans that they should look to as well.

You mentioned Thomas. Thomas chose Alito to write the Dobbs ruling. And you argue that he was the perfect person to write it. Can you unpack that?

Justice Thomas chose him because he thought he was the right person to do this. So usually, the Chief Justice assigns who is writing the majority opinion, 'cause he's usually in the majority. In this case, he was not in the majority that was set to overrule Roe v. Wade. So then it goes to the most senior justice, which is Justice Thomas. He, uh, already had a big case he was working on for that term. But he also knew it just had to be done perfectly. With Alito, you have a man who is willing to put in the work to be exhaustive in his opinions. He goes through everything: the history, the original meaning, the effects of, of what's going on. And he also knows how to keep a majority together. These members on the court are as independent as hogs on ice, as Chief Justice William Rehnquist once said. And so it can be difficult to keep them all together. He was able to to incorporate all the things that they cared about without making them feel like, you know, including what someone else wanted took things too far. And so you saw that in that masterful— I mean, it was a landmark decision.

It's going to be remembered as one of the great decisions to come out of the court is that Dobbs decision.

Lots of speculation about what justice might resign next, particularly on the right side of the aisle with Trump still in office, of course. Some people saying Alito might be one of the candidates there. Do you have any response to that? I know it's, it's, uh, it's dangerous to speculate on these kind of things, but any response?

Once people realized I was writing this big treatment of Justice Alito, they kept on asking me constantly, do you think he's going to retire? And I would always say, quite honestly, I don't think he's going to. There was reporting last week from both CBS and Fox News that he's not going to retire. That matches with my understanding. Justice Thomas has said that he's headed out feet first. Whether that actually happens or not, you know, is up to him. But I would also remind people that there are 3 Republican-appointed justices in their 70s, and the 3rd one is actually the 2nd-longest-serving justice on the court, and that's the Chief Justice, John Roberts. So even though we've got word that Thomas and Alito are not retiring, it's within the realm of possibility that you will still have a retirement at the end of this term.

Final question. As you've documented, there's been some pretty seismic moments for the court in recent years, and it does feel like a splintering is happening. Do you see, you know, a healing taking place amongst the Supreme Court justices or further division?

Well, historically, the court has had a lot of different opinions among the members, but they usually constrain themselves to just saying what they want to say in their opinions and dissents, some of which can get quite harsh. The difference that we've seen recently are some of these temper tantrums or public statements undermining their colleagues or undermining the integrity of the court itself. I do think that the liberal justices could learn from the conservative justices in how to handle being in that very frustrating position of being in a minority on the court. Conservatives had to deal with that for literally decades, and they didn't respond by trashing each other publicly or undermining the integrity. I think the left needs to learn that as well.

We have really documented some pretty fascinating moments in the court and some real bombshells in your book that, as we said, already making some major headlines. Best of luck with it. Thank you so much for coming on.

Thank you so much. We love your program.

That was Molly Hemingway, editor-in-chief of The Federalist, talking about her new book, Alito. And this has been a weekend edition of Morning Wire.