Still Digging: Justice Alito

At some point, he should stop digging and start recusing. There was more bad news for Justice Alito today.

This news involves a reporter who surreptitiously, and while representing herself to be someone she isn’t (a like-minded conservative), taped a brief conversation with the Justice at a Supreme Court Historical Society dinner. I’ve attended similar dinners at the Court; often these are black-tie affairs where regular folk, or at least folk who belong to an organization entitled to hold a dinner or reception at the Court, can rub shoulders with the Justices. Certainly, the last thing on Justice Alito’s mind was that the woman who presented herself as sympathetic to his views was a reporter.

In his brief conversation with Lauren Windsor, Justice Alito acknowledged the “difficulty of living ‘peacefully’ with ideological opponents in the face of ‘fundamental’ differences that ‘can’t be compromised.’” He endorsed what Windsor called the “necessary fight to ‘return our country to a place of godliness.’”

This is deeply troubling. If Justice Alito is making comments like this to a random person at a public dinner, what is he saying to his close confidants? What is he doing on the bench? How can he possibly deliver impartial justice when he so casually expresses these views? Judges are supposed to conduct themselves in a manner that ensures questions like these are never asked about them.

The New York Times describes the reporter involved like this: “Lauren Windsor, a liberal activist who has turned a hidden camera, a Tennessee drawl and a knack for disarming her targets with words of sympathetic conservatism into a loaded political weapon. Posing as a true believer — in Mr. Trump or a stolen 2020 election — Ms. Windsor approaches Republican leaders at party gatherings and tries to coax them into revealing things that they might wish to keep in the G.O.P. family.” Among her other successes, she got then Alabama Senator-elect Tommy Tuberville to reveal some Senators were considering refusing to vote to certify President Biden’s win ahead of January 6. When he was still the Republican nominee for governor of Virginia, Glenn Youngkin told her he couldn’t publicly push his anti-abortion views because it would cost him independent voters. In other words, she’s very good at what she does.

Windsor spoke with both Justice and Mrs. Alito at the event. She shared her recordings with Rolling Stone, where accounts of her conversations with the couple and also Chief Justice Roberts were published today. Since much of it is behind a paywall, I’ve tried to give you a sense of the report in addition to links for those of you who wish to read the pieces yourself. Windsor is working on a documentary, “Gonzo for Democracy,” which Rolling Stone says “will chronicle the growth of Trumpism, election denial, and religious extremism.” 

Many people will find her tactics questionable. This was the justification Windsor offered: “Because the Supreme Court is shrouded in secrecy, and they’re refusing to submit to any accountability in the face of overwhelming evidence of serious ethics breaches, I think that it’s justified to take these types of measures.”

Here’s what happened when she went to dinner at the Supreme Court, just last week on June 3:

• Justice Samuel Alito spoke with surprising candor when Windsor told him she was worried about the outcome of polarization in the country. He told her, “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.” Alito said, “I agree with you, I agree with you,” when Windsor commented, “People in this country who believe in God have got to keep fighting for that — to return our country to a place of godliness.”

• How should Alito have responded? We have a good road map because Windsor tried to have a similar conversation with the Chief Justice. But John Roberts responded very differently. Roberts disagreed with Windsor’s worries about polarization, referencing high tensions during the Vietnam War era as one example. Rolling Stone reports that
  he also insists that the Supreme Court’s current role is not exceptional: “‘The idea that the court is in the middle of a lot of tumultuous stuff going on is nothing new,’ Roberts says. Pressed on whether the court has an obligation to put the country on a more ‘moral path,’ Roberts turns the tables on his questioner: ‘Would you want me to be in charge of putting the nation on a more moral path?’ He argues instead: ‘That’s for people we elect. That’s not for lawyers.’ Presented with the claim that America is a ‘Christian nation’ and that the Supreme Court should be ‘guiding us in that path,’ Roberts again disagrees, citing the perspectives of ‘Jewish and Muslim friends,’ before asserting, ‘It’s not our job to do that. It’s our job to decide the cases the best we can.’”

• Windsor also spoke with Mrs Alito. As she began to suggest that conservatives needed to win to take America back to “a godly place,” Mrs. Alito cut her off to complain about having to see rainbow flags during the month of June, when Pride is celebrated. “‘You know what I want?’ Mrs. Alito says. ‘I want a Sacred Heart of Jesus flag, because I have to look across the lagoon at the Pride flag for the next month.’

  Referencing her husband, Mrs. Alito says, ‘He’s like, ‘Oh, please don’t put up a flag.’ I said, ‘I won’t do it because I am deferring to you. But when you are free of this nonsense, I’m putting it up and I’m gonna send them a message every day, maybe every week, I’ll be changing the flags.’” She continued with more along the same vein.

This was Rolling Stone’s assessment of Alito: “The justice’s unguarded comments highlight the degree to which Alito makes little effort to present himself as a neutral umpire calling judicial balls and strikes, but rather as a partisan member of a hard-right judicial faction that’s empowered to make life-altering decisions for every American.” That’s on target. The Alitos’ personal views and interactions as a married couple are their business. But no judge, and certainly no justice, can express rank political views and hope to maintain the public’s confidence. Every judge knows the right way to respond when questions like the ones Windsor posed arise, and the fact that Alito responded as he did suggests a level of confidence that he has gotten away with this for a long time and will continue to do so, almost as though he believes that he’s above the law. Justice Alito is not worried that he’s going to be called out for carrying his Christian standard into the courtroom.

The legal standard for recusal under federal law provides that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Of course, some Supreme Court Justices, Alito among them, don’t treat that as binding. But this has now reached a full boil, and if Justice Alito will not take the situation seriously, his brothers and sisters on the Court must take steps to ensure he does. The Court, as we’ve noted repeatedly, doesn’t have armies to enforce its orders. The public obeys them because they have confidence in the Court. If that confidence is irrevocably shaken, and it will be if Justice Alito is permitted to continue on this path, we end up in a very dark place.

When the flag stories first broke, Republicans were quick to try and sweep them under the rug. Justice Alito tried to pass it off as his wife’s actions—and to be fair, it sounds from the Rolling Stone interview like the flags were her doing. But he had the obligation to intervene, given his unique and powerful position, which he voluntarily undertook. Windsor’s reporting makes it clear that Justice Alito didn’t do anything about the flags because he was fundamentally in agreement with his wife’s views and willing to indulge their public expression. That’s something no justice should do.

A statistic about Alito's jurisprudence that has stuck with me has to do with his rulings on the doctrine of standing—whether a particular party is entitled to bring their claims to court. “An empirical analysis of the Court’s ‘standing’ decisions ... found that Alito rules in favor of conservative litigants 100% of the time & against liberal litigants in every single case.” Alito has been described as the Court’s “most reliable partisan.” No Judge in our country should embrace that description of him or herself. But with his comments at dinner, Justice Alito did so.

Any other federal judge would be facing a judicial ethics inquiry at this point and the certainty of forced recusal. But because the Supreme Court lacks an enforceable ethics code, there is technically no one who can force Justice Alito to do anything. It’s Sam Alito versus the integrity of the Court, and if his colleagues don’t step in and do something about it, our institutions and our country face serious trouble.

We’re in this together,

Joyce