Mollie Hemingway, author of “Alito,” joined “The Megyn Kelly Show” on Monday to discuss why Justices Alito and Thomas are likely to not retire this year, the potential Chief Justice Roberts is actually the one who might retire before the midterms, and more.
MOLLIE HEMINGWAY: So people have been speculating that Justice Alito is definitely going to retire at the end of this term. They’ve been doing this for about a year. And I keep telling people I don’t actually see that happening.
I don’t know for sure anything is possible. But the reporting that just came out from Fox News and also Jan Crawford at CBS, it matches with my understanding as well. He’s not inclined to retire and people should be prepared for that.
MEGYN KELLY: It’s very interesting because I have pretty solid reporting the other way that at least as of about six weeks ago, he was planning to step down, that he wanted to do it. So it’s possible he was talked out of it. It’s possible he’s reconsidering it or it’s possible this is all a head fake.
MOLLIE HEMINGWAY: So I don’t know. I do think there’s this thing with Justice Alito in that he’s clearly the person on the court who least enjoys the trappings of having that position of authority. And so people, I think, frequently perceive that as his just disdain for Washington, D.C. That’s real. He really does not think Washington, D.C. is as great of a place as people seem to think it is. One of the many things we love about him. I do want to say that people should not assume that just because the word is that Justice Thomas and Justice Alito are not retiring, that that means there will be no retirements.
I, again, don’t have inside information, but I would not put it outside the realm of possibility that there might be a retirement at the end of this term. I’ll leave it at that.
KELLY: Wait, can you say that again?
HEMINGWAY: I would not say it’s outside the realm of possibility that there will be a retirement at the end of this term, even if it’s not going to be Justice Alito or Justice Thomas.
MEGYN KELLY: OK. All right. Well, we definitely don’t want it to be Justice Alito or Justice Thomas unless it would cost the GOP the seat, in which case, sadly, they do have to go like that.
This is a this is like a parlor game that we have to play here. I don’t really think the Senate is in jeopardy in the midterms. It’s just it suddenly could be given what’s happening with the Iran war.
That’s what’s disconcerting. But if the GOP can hold on to the Senate, then President Trump has another three years just short of to find a replacement or, you know, for a conservative justice to step down and for President Trump to nominate and then get confirmed a replacement. So there is time unless the worst happens in November.
MOLLIE HEMINGWAY: Well, and let’s just point out to a lot of the reasons why people are focusing on Justice Thomas and Alito is because they are the two oldest members, the Republican appointed members of the court. But Justice Roberts, Chief Justice Roberts, is also in his 70s. And so if people want to speculate about people retiring, I mean, David Souter retired when he was younger than Chief Justice Roberts.
He had served, I think, less long, about the same time as Chief Justice Roberts has. So I will also say that being that Thomas and Alito are the most consistently conservative or libertarian justices on the court, conservatives who want to replace them should maybe seek other people who might be better to replace.
MEGYN KELLY: Yes. No, I always say if you’re voting any way other than how especially Alito is voting, you’re voting the wrong way. Those two are almost in lockstep all the time. They should be your guide. Whatever they’re doing, Justice Barrett, you do it. That’s why Trump put you on the high court.
But this is very interesting news you’re suggesting is that because it’s not going to be Kavanaugh, Gorsuch or Barrett. They’re brand new. Those are all Trump appointees and they’re Supreme Court young. So the only other conservative would be the chief justice who’s less young and probably ready to like sail in the Mediterranean with his like he’s had 20 years now, like literally I think it was 2006, right, that he was appointed by Bush, probably would like some family time.
MOLLIE HEMINGWAY: Well, in my book, I go through each of the justices and how their jurisprudence compares with Justice Alito’s. Chief Justice Roberts, you kind of have to understand at least some of his frustration. He’s the only one of the Republican appointed justices who flat out admits he doesn’t really have a judicial philosophy when he comes onto the court.
He proves that when he saves Obamacare by rewriting the law. But his big overarching goal as chief justice has been to get the justices to all kind of work together, to have more opinions from the court being handed down as opinions from the court rather than everybody writing their own opinion or concurrence or dissent. And instead, you know, things have kind of gotten a little harried recently, right?
You’ve had the leak of the Dobbs decision. You had just this weekend another leak dating back to 2016 that was totally unnecessary and gratuitous. You have, you know, in my book, I tell the story about how some of the justices, knowing that their colleagues’ lives were under threat, knowing that their colleagues’ children’s lives were under threat, intentionally slow walked the Dobbs decision by two months, including not just not getting it done, not getting their dissent done so that it could be released, but also including in that dissent, a footnote to a decision that was still being worked on by both sides. So they knew that that decision wouldn’t come out until quite near the end of the term.
Now, how this is the opposite of collegiality when you are knowing that your colleagues’ lives are being threatened and you are just slow walking something that could put that all away.
