Secret tapes of Supreme Court Justice Samuel Alito released publicly Monday have plunged the conservative justice and the high court into deeper controversy, exposing a conversation that saw Alito endorsing ultra-conservative hot-takes.
The audio, obtained and first reported by Rolling Stone, came just weeks after reports of far-right-aligned flags being flown outside Alito's home sparked widespread backlash. The reports follow a year of ethics scandal-exposés involving both him and Justice Clarence Thomas. The newly revealed recordings have similarly prompted harsh rebuke of the justice, with legal experts decrying Alito's boosting of Christian nationalist rhetoric on the tapes as unethical.
"Justice Alito’s recorded comments aren’t so much revealing as they are confirming," James Sample, a Hofstra University constitutional law professor, told Salon. "They reinforce what we already know: that Justice Alito sees his raison d’etre as being more of an ideological culture warrior more than a jurist. And he’s indisputably winning the wars he is waging."
The bevy of revelations have also intensified public scrutiny of the Supreme Court in the wake of a series of contentious decisions in recent years, including eliminating federal protections for abortion care and gutting race-based affirmative action, and have led ethics watchdogs and government officials to declare that an externally enforced ethics code be imposed on the justices, a call that Senate Democrats renewed by seeking to pass a binding-ethics code proposal Wednesday in light of the new tapes.
These new tapes mark "yet another self-inflicted wound on the part of the Supreme Court," according to David Schultz, a professor of legal studies and political science at Hamline University.
"We've seen this gradual deterioration of support for the courts, and it's clearly collapsed after the Dobbs opinion. I mean, none of this is going to turn it around," Schultz told Salon, adding: "It's just going to further erode support for the judiciary. And I hate to say this at a time where you've got [former president Donald Trump] attacking the court system and where you really need people to be defending the courts."
Alito's conversation occurred during the Supreme Court Historical Society's annual dinner earlier this month and was recorded by liberal documentary filmmaker Lauren Windsor, who describes herself as an "advocacy journalist" and has a reputation for secretly recording conservatives.
Windsor, who attended the event under her real name and peppered Alito with questions aligned with far-right ideology, got the justice to offer up his perspective on the opinions she touted. At one point in their exchange, she received an endorsement from the justice of her argument that ending the nation's political polarization by negotiating with the political left not possible, and that it's a matter of "winning" rather than compromise.
“I think you’re probably right,” Alito told Windsor. “On one side or the other — one side or the other is going to win. I don’t know. I mean, there can be a way of working — a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference.”
In another instance, Alito said he agreed with her position that the country's Christian population has "got to keep fighting" to “return our country to a place of godliness.”
EXCLUSIVE UNDERCOVER AUDIO:
— Lauren Windsor (@lawindsor) June 10, 2024
Sam Alito x John Roberts x The Undercurrent 🧵
1/ Justice Alito admits lack of impartiality with the Left, says: “One side or the other is going to win.” pic.twitter.com/b5nmxToZ9z
Schultz argued that the problems with the exchange are three-fold. First, it presents "almost an apocalyptic vision of American politics" of "dual-contending forces" that Alito appears to hint the resolution to aligns more with a "Christian vision." The second arises from his articulation of this vision, which flies in the face of the "myth" that these "justices are apolitical" and supposed to avoid "abandoning the neutrality."
Third, Alito's statements on the recording also appear to "reinforce both the appearance and the reality that he's voting ideology," that he's not "reading the Constitution neutrally," Schultz continued.
Windsor also secretly taped a conversation Chief Justice John Roberts at the dinner, but his responses to a line of questioning similar to what his colleague received appeared to come in sharp contrast to Alito's, ringing more neutral.
Roberts, according to The New York Times, instead, pushed back against Windsor's assertion that the court had to return the county to a more "moral path."
“Would you want me to be in charge of putting the nation on a more moral path?” Roberts rebutted. “That’s for people we elect. That’s not for lawyers.”
When Windsor expressed views that the U.S. is a "Christian nation" and the Supreme Court "should be guiding us in that path," the chief justice also disagreed, offering a more pluralistic counterpoint.
“I don’t know if that’s true," he said, adding: “I don’t know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say maybe not, and it’s not our job to do that.”
2/ Chief Justice Roberts denies that America is a Christian nation. pic.twitter.com/hb3iFa5Jnv
— Lauren Windsor (@lawindsor) June 10, 2024
While Schultz said Roberts still shouldn't have addressed the questions, the chief justice's responses reflected a "more classic view" in terms of acknowledging the array of perspectives in the nation even with his orientation as a conservative justice.
"Roberts looks like he's a Chief Justice trying to defend the institution of the Supreme Court by at least coming across and looking somewhat more neutral," Schultz said. By comparison, Alito "looks like he's an advocate now," Schultz argued, adding: "He's the politician with robes."
"Chief Justice Roberts and Justice Alito often reach similar results on the merits," Sample added. "The difference is the extent to which they respect judicial norms."
Charles Geyh, a scholar of judicial ethics and law professor at Indiana University's Maurer School of Law, told Salon that, while he was still "troubled" by Alito's responses — calling Alito's rejection of political compromise disheartening — he finds the justice's comments to reflect a different interpretation of Windsor's questioning from that of Roberts.
Alito appeared to answer the questions, not in an official capacity, but as a conservative with matching views, Geyh said, whereas Roberts seemed to interpret the questioning from the perspective of his role as chief justice and the aims of the court.
"From a judicial ethics standpoint, I would have been deeply troubled if [Alito] had made it clear that he was saying the court needs to be turning us in a more godly direction, that the court needs to assert moral authority and move us to a particular place, that he, as a justice, sees it as his role to interpret the First Amendment — more specifically, the Freedom of Religion clause, the Establishment Clause — in a way that turns us to a godlier nation," Geyh, told Salon. "Then, I'd be flinging flares in the air. But I don't interpret him answering the question that way."
A 2002 Supreme Court decision, Republican Party of Minnesota v. White, held that state Supreme Court justices have a First Amendment right to voice their personal opinions on issues in the context of running for a judgeship, Geyh explained, arguing that the same thing applies here insofar as judges having opinions that they're entitled to.
While allowing his personal views to guide his decision-making on the bench is one of the ethics abuses critics have accused Alito of, especially in the wake of his recent scandals, Geyh argued that Alito's responses on the tape don't offer enough information about how he approaches his role to indicate that his personal beliefs do more than influence his read of the law in close cases as opposed to usurping his approach to his duties and decision making.
"Even if Alito thinks that we need a godlier nation, that doesn't automatically mean that he's going to disregard the First Amendment," said Geyh, who also previously served as counsel to the House Judiciary Committee.
While the justice's remarks do offer insight into his belief and how they may inform his legal views, Geyh continued, it "leads us down a path that's illegitimate if he basically is saying, 'Law be damned, I'm going to impose my personal views.' But if what we're saying is, 'The law is ambiguous. It's unclear how this case should be resolved under the establishment clause or the freedom of religion clause, and I am doing my best to interpret it as it should be understood, and my views inevitably influence the way I think about what outcome's best,' that's not illegitimate. That's just the way the world works in close cases."
Still, Geyh said, in a political climate when activists like Windsor are "arguably playing gotcha games" and the court's legitimacy is suffering in the public eye, in part, because of beliefs "bipartisan politics and agendas" drive the justices' decisions, the recent incidents signify the importance of judges being "cautious" and "ever-mindful of how their conduct has been politicized, and they have politicized their conduct themselves," especially in the case of a "political lightning rod" like Alito.
"It's not openly, affirmatively unethical for them to do what he did, but I think the preferred course is to stay under the radar, to do what you can to preserve your open mindedness as best you can and not lock yourself in in public statements that imply that you've got an ax to grind," he explained, referencing canon two of the ethics code the Supreme Court adopted last year.
The Supreme Court Historical Society's executive director, James Duff, condemned Windsor's "surreptitious recording of Justices at the event" as "inconsistent with the entire spirit of the evening" in a statement Monday. “Our policy is to ensure that all attendees, including the Justices, are treated with respect," Duff said.
Windsor, however, has defended her actions, explaining that she felt she had no other means of reporting on the justices' true thoughts.
“We have a court that has refused to submit to any accountability whatsoever — they are shrouded in secrecy,” Windsor said, per The Times. “I don’t know how, other than going undercover, I would have been able to get answers to these questions.”
On Tuesday night, Windsor dropped another undercover audio of Alito, recorded by a colleague at the same June 3 dinner.
In the latest tape, the justice appeared to blame partisan funding for the coverage of the Supreme Court's undisclosed lavish gifts and travel, specifically citing ProPublica, which published a series of bombshell reports in the last year on Alito and Thomas' failure to report the gifts on annual disclosures.
Asked why the Supreme Court is being "so attacked" and "targeted by the media these days," Alito responded plainly.
“They don’t like our decisions, and they don’t like how they anticipate we may decide some cases that are coming up. That’s the beginning of the end of it,” he said, according to Rolling Stone. “There are groups that are very well-funded by ideological groups that have spearheaded these attacks," he added. "That’s what it is.”
EXCLUSIVE UNDERCOVER AUDIO feat. the debut of my colleague @Ally_Sammarco:
— Lauren Windsor (@lawindsor) June 12, 2024
Alito v @ProPublica
Justice Alito rants on ProPublica and minimizes Justice Thomas’ extraordinary ethics breaches as “any little thing they can find" pic.twitter.com/HXFlaxRpWm
