justice alito: i remember vividly. i had been nominated numerous times but the president had nominated harriet miers. i was sitting at the island in my kitchen early one morning drinking coffee and got a call on the fan -- phone. it was debbie to cancel saying here yet once withdraw and the president decided he wants to nominate me. thank you told -- then they told me the president would call at a particular time. the president called and said i would like to nominate you for the supreme court. i said, mr. president, thank you very much. i am deeply honored, and then there was a pause. and he said, do you accept? [laughter] president bush was not a lawyer. [laughter] john: so you obviously spoken to them before, and i know when think you share in common is you are both passionate baseball fans. did you spend more time talking about law or baseball? justice alito: it was a bit of both, and to me i am trying to think back on the exact questions that we discussed. i cannot quite remember, but what i do vividly remember is

[applause] >> justice alito. and honored to have you here at heritage to deliver what was going to be a lecture but i think was even better, our conversation, and hats off to you for moderating it. round of applause. [applause] >> thanks for your comments about the law and about baseball. being in atlanta braves fan i'm suffering from the phillies win but congratulations. all kidding aside it is my privilege to present you with a few tokens of our esteem to mark the occasion. first as you can't see her but some of the audience can see on the other side of the podium the other 2-volume set of joseph story's commentaries on the constitution. there awfully good for bicep rules but if you don't want to do that you might give them to some of your colleagues and encourage them to read them. coming from this historian. if that's too much we have an abridged version and one volume without forward by our very own attorney general, less good for bicep curls but these are a read. most important, i would like to give you the

justice alito: okay. mr. verrilli: i do think that woulbe rare case, but i think -- justice alito: i appreciate that swer because i think the worst thing we could do, althoh might be attractive for some reasons, is to say, well, there is a limit but, you kn, but it's one that in practice can nev bexceeded, so we have a standard but it's just, you know, it doesn't mean anything. under that understanding, let me lk about the decision in this case. and we've heard about the english bill of rights. i mean, has anybody ever thought that the engli bl of rights had anything to do with one person, one vote, much less political gerrymandering? mr. verrilli: well, i think the historical roots of those doctrines, yeah, do trace back to the idea that the english bill of rights was tryinto deal with, which was the manipulation of the electoral process, includinghewho is going to represent what area, in order to entrench those in power. justice alito: well, wasn't it true, you probably know more about british constitut

justice alito? justice alito: is your standard a stanhat can be flunked? mr. verrilli: yeah, i assume it could be flunked. justito: give me an example of something that would flunk your standard. mr. verrilli: so, you know, i think a naked declaration at -- that an act of a legislature under a free and fair elections clause is unfair, without any grounding in history or precedent or -- or snd analysis of a kind that the state, you know, is appropriate under that state's mode of interpretation, i think you could envision that possibility haeng. justice alito: okay. mr. verrilli: i do tnkhat would be a rare case, but i think -- justice alit ippreciate that answer because i think the worst thing we could do, although it might bettctive for some reasons, is to say, well, there is a limit but, you know, we but it'one that in practice can never be exceeded, whave a standard but it's just, you know, it doesn'me anything. under that ueranding, let me talk about the decision in this case. and 've heard about the english bill of rights. me, has anybody ever thought that

we are supposed to pick your word over justice alito?we are supposed to take your word over a lady who donated to your cause, miss gail wright, you are disparaging her name, justice alito's name, and the court? and you have this, which obviously did not happen. we've got the transcript, we've got the audio, but you made it a big deal in your book. one thing i have learned, people who mislead folks on small things mislead them on big things. and you know what? you can light in the book, it's not a crime. you can lie to the new york times, it's not a crime, but when you come in front of congress and you say things that are not true, you are not allowed to do that. you are not supposed to do that. we have seen it. you are not supposed to do that. i yield back. >> the gentleman yields back. at this time, the time is expired, so i will therefore recognize myself for five minutes of questions. reverend schenck, i have been in congress now for 16 years. never have i witnessed the kind of savage attack that has been levied against you today. i'v

justice alito: thank you. justice sotomayor: would you deal with the historical examples your colleague spoke about as supporting his position. the 3/5. maryland's 19th amendment rule. i think your brief does an adequate job on the story issue. mr. katyal: so the maryland one is just about the amendment process. that's lesser. it doesn't bear on the original meaning. that's 1830. it's not the bruin, you know, time period of the founding. we have provision after provision even before the founding, the articles of confederation, which blows apart their historical theory. with respect to virginia, yeah, one person would say this violates the election clause. james madison and the chief justice of this supreme court, john marshall, voted for the bill even after that objection. so if anything it cuts the other way. but i am not aware of a decision by this court that invalidates early state constitutional provisions as being federally unconstitutional in a way this theory does. justice sotomayor: and you don't take

justice alito: forget intent. what areheesults when you do a mper simulation that takes into aou all race neutral districting ftors accepted by this court and the result is, not the intent, this is a computer, it does not have any intent, the result is you do not get the secd jority minority district. ms. khan: the reason that does not answer the question is because the simulation is generating more questions than they awe even if you were to charge it with taking into account race neutral criteria, there is a lot of subjeivy going into how you code that. ala's expert below acknowledged that our maps were not reasonably compact and there no bright line rule. even puttingho criteria into our computer algorithm require coming up with bright line rules th do not currently exist. instead what we have is a reasonableness in great -- inquiry to determine whethe >> justice alito gave the game away when he said race neutral means do not look at community of interest because it is a proxy for race. regrettably, tt what it

now alito denied this.some agree whether he leaked the decision is the most staggering illegal thing. there is an established network where people with money that want to access supreme court justices in service of their own ideological missions, those people can indeed buy access to supreme court justices. and maybe even further ideological missions and get insanely missions. and no one is stopping this. the wrights are still involved with the supreme court historical society. as of 2021, gayle wright was a distinguished donor of the society which is a title guven -- given to people that donate between 5 and $25,000 in any given year. do you blame her? joining us know is melissa murray, she is host of strict scrutiny podcast. thank you for coming on the show. this is, i don't understand why this is not headline news across the country and it is shocking and it is unacceptable if you believe in the independence of the judiciary. how can this be going on? >> that is the question. everyone has been talking ab

the decision froma alito before its release. even the "new york times", the "new york times" that broke the story said there are gaps in mr. schenck's account. gaps in his account. that's a liberal speak for this story doesn't add up. i'll tell you something that did happen. the dobbs gotco opinion was, in fact, leaked. and it was a public on may 2, 2022.te after thatin late, as i said coe dozens and dozens of churches were attacked. dozens and dozens of pro-life crisis pregnancy centers were attacked. proteste the credit supreme cot justices holmes and there n assassination attempt on justice kavanaugh. but to date in this congress not one hearing in the house judiciary committee about that leak.. not when hearing about the real leaked but here we are today at the end of the session having a hearing on the fake leak. from a witness whose story even the liberal press says, quote, we were unable to locate anyone who can corroborate what he said. that's what we're reporting. so i hope maybe in the last week or two of the session o

ustice alito? justice. sotomayor: i found -- find it interesting that you are counting doctors studies from the one you previously interjecd histues on the basis that the studies were incomplete. mr. lacour: yes. it is very easy answer to give. we took in account the e-existing district lines as traditional boundaries. he did not. has not could not reveal. -- hislop could not reveal. -- his map could not reveal. we took in account the same things they were takenn account. you co back with maps that comeowre clo tcreating a second majority black district. icshows race was a criteria th could not be compromised. we could have never drawn os mapsnstitutionally. just to get back to general confusion, it puts a obvious ck in a hard place. they are using ms force us to draw maps that cld have never drawn. that cannot be how the mandate of section two works. it needs to work to the constitution, not in cflict. justice. kag: some of yo arguments strongly indicate that alabama cou enact a planit no majority minority

now alito has denied this but to some degree weather alito leaks in the decision is actually the mostriate thing here. what schenk story reveals eight establishing network of people that want to access supreme court justices in service of their own ideological missions, those people can indeed buy access to supreme court justices. and maybe even further those ideological admissions, or maybe get some is insanely useful information as it pertains to the ideological missions. and so far, no one is stopping us. the writer still involved with the supreme court historical society, as a 2020, one gayle wright is -- in the set as a sort of honor from -- donie to five $25,000 on any given year. and can you blame her? it's a strategy to lobby some of the most influential people in the country has worked this well, why stop now? joining us now is melissa murray, she's a professor of new york university school of law, co-host of the legal podcast a must close sense, strict scrutiny and msnbc legal analyst. it's great to see you, thank you for coming on the show! >> thanks for having me. >> this

justice alito pointing out a person would have a claim the prosecutor said i understand my right, myauthority to run with chapter4 d the court of criminal appeals said such and such. it certainly the claim applies and because he's suffered a denial bad that constitutional conviction but the other point is it's an incredibly adniered rule. because of skinner arises from a judicial decision in all postures every single had a stamp date. >> if he goes to federal court pursuant to your re whe he's in state court to federal court will just stay the ti until the state court ti commences or concludes? so what difference est make? the most compeinpart of mister reid's merit claim was atthe principal find that doctrine obtained in your, that it doesn't matter whether or not to keep a prisoner from being able to ina federal claim >> quite the opposite your honor. in most cases where calls to mister reeves rule requires them to go through the state appellate system beforen fact or at least the rule he advocated foinhis brief before they have a claim for crew. someone like that the person suffer

having dinner with the alitos -- both deny it.is life. in fact, a judge, a federal judge found that he'd lied are repeatedly under oath. he himself in his memoirs on a blog post said that he has lied and told consequential lies, many consequential lies. so it's somebody you just can't believe, and it's so out of character. i don't believe justice alito would do anything like that. tr there's no record of him doing anything like that. so to have this hearing with such a flawed witness who has, in my view, zero credibility just shows how desperate the congressional democrats are to smear this supreme court. you know, hay don't like the opinions that are coming down from the supreme court now, right? in the past the supreme court, whether they were republican presidents or democrat presidents, supreme court was this reliable institution to impose these progressive policies as sort of an activist court. and i think they realize now that they have these justices on the court that have been appointed who are originalists, who understand

i'm assuming justice alito didn't quite realize what he was doing. what i was doing -- materially harming gay couples around the country and instead, he substituted think that was of a silly, trivial, and demeaning of the seriousness of this case that for a lot of us who are watching, it felt kind of insulting. >> i feel, like for such a long, time we've held the supreme court in this country we put it on expel, still rightfully, so right? because it was such an important institution, it still is such an important institution, but i think the more we're seeing these justices and the way they reveal more of their themselves i think a lot of americans are getting on board with some need for reform of the supreme court if not expansion and in some kind of ethical constraints on this powerful institution. delia lithwick, it's always a pleasure, thanks so much for making time for us tonight, we really appreciated as always. >> thank you. >> i want to continue this conversation with michelle goldberg a columnist for the new york times, an msnbc political a

i have to say that what justice alito was doing there was bringing up hypotheticals meant to diminishscenarios that the liberals were bringing to the table, because before he invoked a scenario with a black santa and the kid in the costume justice ketanji brown jackson had shared ruled for a design here doesn't want to serve same-sex couples, could it down the road allow racial discrimination for someone who wants to photograph a white santa only with white children? so that white santa/black santa scenario was on the table but justice alito was trying to diminish the other scenarios saying if we rule first time and side with this website designer lori smith who says her christian beliefs preclude her from serving same-sex couples, if they rule for her it would be the first time they're saying that a business that serves the public can, and that engages in some expression, can shut out certain people based on religion, based on race, based on sex. >> joan, we actually heard from lori smith, the petitioner in this case, this graphic designer, and she talked to cnn about what her positi

elie mystal analysts summary on the stylings of a samuel alito. >> you to see a lot of black childrende clicks clan outfits, right? all the time. >> all in, starts right now. >> good evening from new york, i'm chris hayes. we are about 24 hours away from the final results of the 2022 election season. tomorrow, of course, is the runoff elections for georgia senate. after neither candidate they are cleared 50% in the first round last month. incumbent democrat, warnock, and trump backed republican candidate, herschel walker face off again. the outcome of this election will be incredibly important for history. first, in no particular order, that if if warnock retains the city will be the 51st -- not might not sound an important given that democrats would hold a majority in the senate couple harris have talked. it is important. right now the senate is evenly split, 50/50. democrats have control because of the tie breaker. they don't hold a proper majority. things like committee assignments are still evenly split between both parties. if warnock winds, that will change, democrats will have

alito now denies.eak is problematic, but so is the shameless and shocking maneuver to buy supreme court justices, but all of this is reaffirming what we've known for quite some time. the supreme court has a massive accountability issue. in light of these reports, senator sheldon whitehouse and senator hank johnson sent a letter to chief justice roberts demanding answers. they will be holding a meeting next week to investigate this conservative lobbying campaign which may very well have led to the leaks of two landmark rulings. joining us now is senator sheldon whitehouse. senator, it's so good to see you. thank you for being here tonight. we've been covering this extort repeatedly because i find it totally outrageous. you're calling for a more formal infrastruck tour to overseem the supreme court ethically. is that even possible? >> yeah, it is, and the court could do it itself, and if they don't, then chairman johnson and i have proposed a piece of legislation that would bake in some of the essential

>> justice alito, ytng further? just a sotomayor? justice kagan?>> i'm going to ask you a qution about alabama's argument. maybi should've asked it to alabama's lawyer. he can listen. you are there. >> i'll do what i can. do >> you understand why alabama should be tisfied with t idea, if you can just produce one race neutral map? it's the theory here is you can run llions of these programs anwe care about race neutrality for any of the reons that alabama ggests we ought to at the first step of jingles, at the first precondition, y would one be enou? if you ran one, shouldn't this stage come back and, say well, you need more than onin 1 million. surely you should have 100. surely you should have 1000. surely you should be the median map. why one? >> this is exactly thunder theorize aspect of alabama's approach. herehe don't try to answer any of those questions. either out how you operationalizehe, standard how you agree upon hoto program the algorithm to take account of all the complex consllion of redistricting criteria or w you interpret results a

let me i'll just since i started with this this is the justice alito. if you want the opposing view, you can read alito's unfolding, because this is a piece of evidence did not like let's put that out there when they're drafting second amendment which is about the right to bear arms. there was a provision that said basically allowing for conscientious objection and the worry was that that when you in the context of the right to bear arms there going to be a military draft, right? you'd have to bear arms. and what about the quakers and so they had an exemption in, the second amendment. the second amendment was drafted at the same time as the first amendment on the same day. in fact, they drafted the first amendment free exercise and then they drafted what became the second amendment, and then in the context of drafting the amendment, they said, well, what about the quakers? and they did this right after they adopted the first amendment. and my point is this if the free exercise clause granted exemptions, that is is the first amendment granted exemptions,

let me i'll just since i started with this this is the justice alito. if you want the opposing view, you can read alito's unfolding, because this is a piece of evidence did not like let's put that out there when they're drafting second amendment which is about the right to bear arms. there was a provision that said basically allowing for conscientious objection and the worry was that that when you in the context of the right to bear arms there going to be a military draft, right? you'd have to bear arms. and what about the quakers and so they had an exemption in, the second amendment. the second amendment was drafted at the same time as the first amendment on the same day. in fact, they drafted the first amendment free exercise and then they drafted what became the second amendment, and then in the context of drafting the amendment, they said, well, what about the quakers? and they did this right after they adopted the first amendment. and my point is this if the free exercise clause granted exemptions, that is is the first amendment granted exemptions,

justice alito ga aexample earlier. you agree with respect to the essays, whether it is guidance counselors or students, can express whatevevis they choose to express about their own racial experiences and relevance of that missions officers? >> yes. what title vi bands is race itse as a consideration. if the university giedit to a black student who writes an essay about overcoming discrimination and credit to an asian student, ats not race itself. that is overcoming mination, which is not a racial patient. -- classification. >> it is one thing to say that have written about overcomingyou discrimination a stuould write about any number of obstaclesrom overcoming al disabilities and on down the line. as justice jackson an the pride, what if an appliht -- wrote an essay about how integral the racl identity was to them as a source of pride and ural attributes of the racial heritage were important? with that be ok, if it were intimately tied upit traditions of a mexican family? if the answer is no, that cannot be extricated

justice alito denies its allegation. the individual who allegedly was the conduit for the leak denies it ever happened. and even the media admits there are holes in this story. politico said this, quote, we spent several months attempting to corroborate the allegation but were unable to locate a anyone, unable to locate anyone who heard about the decision from alito or his wife before the case. "the new york times" reported that there are, quote, gaps in the allegation. new york times is the one that broke the story. they reported there are gaps in this allegation about a leak from justice alito eight years ago. gaps. you know what that is, that's l liberal speak for that story doesn't add up, but democrats are determined to not let the truth get in the way of their story and their intimidate tactics on the court. this is not the way we're supposed to operate. i hope that we can vote this bill down. i hope it does not pass because i think it is dangerous and takes the country in the wrong direction. with that i reserve t

today, there was even a question about from justice alito about the meaning of fair elections in theorth carolina constitution in this exchange with donald perrelli who was arguing for the north carolina election officials. >> what is this free elections clause trying to get at in the north carolina constitution and the other constitutions that adopted it at the time of the framing? >> 1776. 200 plus years ago. was anybody at that time saying election isn't free, if there's political gerrymandering? reporter: where else did this argument come up today? >> well, this this case, very much involves what at least four justices are committed to, originalism. they look at constitutional questions through the lens of texts, history and tradition. and so the supporters of this theory believe that history is on their side, whereas the abundance of the theory, i believe that history is on their side, and i would have to say that the weight of history if you do respect american historians, and they filed numerous briefs and in this case, the weight of history is really on the opposite side of t

jtice alito? >> i'd like resns to the argument that these racial categories are so broad that in the use of them is arbitrary, and thereforeunconstitutional. so what would yo say to, for example, a student whose family came from afghanistan, and doesn't get in because a student doesn't get the plus factor that a student would get if the students family have come from someplac else. so you say listen, what we don't need youto contribute to a diversity of views, but a school, because we already have enoughasians. we have enough students whose families came from china, or heasian countries, and the sten says, we don't have yby like me. i am from afghanistan. what similaritydoes a family ckground from a personand afghanistan have from somebody his familybackground is say d, japan? >> so with what youe describing the exact opposite of how our process actually rks. an individualized basis. we discussed thion page 11 or a brief. there is a vietnamese student in the admissions office, testified about it b

>> those three on the far right, thomas, gorsuch and alito, they are actually all in on all this.judge michael lewd dig who we all regard as quite a conservative out there, and he's saying this is so radical. to have this all aired during three hours of very tense arguments in that courtroom last week is saying something. so this court -- a majority is open to it, the three you mentioned in the middle. they're here entertaining this idea and it's known as the independent state legislature theory which is sort of hard on our audience's ears. it goes to the checks and balances as kagan state about whether state courts interpreting state constitutions will be able to ensure protections for voters in the face of legislative restrictions. i think we are going to see some ruling that pulls back on the authority of state judges in some way. i don't think that there's a majority to go as far as those on the right want to go to remove state judges from the calculation. >> that would be really extraordinary. to your point, it's not that a bunch of liberals are saying this. even conservative

, something alito now denies. the shameless and shockingly successful maneuver to buy access to supreme court justices. but all of this is something that we've known for quite some time. the supreme court has a massive accountability problem. politico, the new york times, and others, have just put it on full display. in light of these reports, senator sheldon whitehouse and congressman hank johnson sent a letter to chief justice roberts, demanding answers and asking for formal inquiries. and tonight, the house judiciary committee announced that it will be holding a hearing next week to investigate this conservative lobby campaign, which may very well have led to the leaks of two landmark rulings. joining us now is democratic senator, sheldon whitehouse, chair of the senate judiciary subcommittee on federal courts'oversight, agency, action, and federal rights. senator, it is so good to see you. thank you for being here. we have been covering the story repeatedly because i find it totally outrageous. you are calling

and i gather justice alito saying that when does it will you know? because grutter very clearly says this is so dangerous, it isn't that this is great. grutter says this is, daers and it has happened in point. and i hear is telling justice alito that there is no end point. >> your, hornd i apologize if i gave that impression. three points in the end point. we enthusiastically embrace the duration of requirement, if you try to devything possible to adopt race neutral teatives from the time of greater to today to minimize our consideration of race. in a university where endowment endowment, during the record was around 3biion dollars, we are spent well more than a billion dollars on financial aid programs, to try to recruit low income students across the board, and i think that that is the first generationac neutral alternative, then the second would be to try to expand the pool. we have an incredibly expensive program where around half transfer students come from -- >> if i use interrupfr one second, how do you know when you are done? justice alito sa

the donor denies the leak, alito has also denied th allegations.ay, the damage is already done to the court' credibility. so, my question, what else can we expect from this righ leaning court in 2023? well, we will dive into al this with mark joseph ster after a quick break. after a quick break. [baby yawning] let's get you home for the holidays. ♪♪ ♪♪ ♪♪ it's the subway series menu. 12 irresistible subs. the most epic sandwich roster ever created. ♪♪ it's subway's biggest refresh yet! my a1c stayed here, it needed to be here. ♪♪ ray's a1c is down with rybelsus®. i'm down with rybelsus®. my a1c is down with rybelsus®. in a clinical study, once-daily rybelsus® significantly lowered a1c better than a leading branded pill. in the same study, people taking rybelsus® lost more weight. rybelsus® isn't for people with type 1 diabetes. don't take rybelsus® if you or your family ever had medullary thyroid cancer, or have multiple endocrine neoplasia syndrome type 2, or if allergic to it. stop rybelsus® and get medical help right away if you get a lump or sw

one, you saw that when that alito leak went out of his draft opinion. they all got mad as hell and they said, we're to investigate this. the chief justice said, i've the marshal to investigate this. so he clearly demonstrated his belief that he had the power to order an investigation. and what i've been asking him and telling him and indeed told him at the last judicial conference meeting, which i get invited to, not his favorite invite, i'll tell you, is, okay, now that you establish the proposition that you can order investigations into matters, investigate what thomas knew and when he knew it about his wife's activities, the insurrection, pretty straightforward investigative stuff. so it opens it opens a window for him to lead an ethics regime in which there is at least investigation with traditional investigative principles, that if you lie you know, you're accountable and it's not just press releases from the judges. so that, i think is pretty important. and then, of course, he could always move to try to adopt a code of ethics and to determine a w

i would say most sympathetic appeared to be justices alito, thomas and gorsuch.s with the greatest skepticism and concern were kagan, sotomayor and jackson. that leaves the chief justice justice in kavanaugh and amy coney barrett who really did not tip their hands either way. all three of them made comments that might lead to believe they could go either way so we are going to have to wait and see. i think those three justices may hold the key to the fate of this theory which as the professor said is consided revolutionary. >> thank you very much. >> pleasure, john. >> thank yo, john -- thank you. ♪ judy: a massive u.s. defense related bill weld out late last night is making its way through congress. the annual national defense authorization act is a 4000 page bill put together by bipartisan negotiators. it sets parameters for the military and this year it includes major policy changes. lisa desjardinss on capitol hill with more. what is in this bill? >> this is a sweeping piece of legislation. i have definitely not read all 4000 pages and there is an 800 page ac