Tuesday Talk*: Did Justice Alito Confess To Perfidy?

It’s normal for a justice or two to show up at a black tie affair of the Supreme Court Historical Society, so Justice Sam Alito’s presence, along with C,J. Roberts, was nothing out of the ordinary. But a progressive activist, Lauren Windsor, seized upon the opportunity to engage the justice by pretending to be a religious conservative. She recorded the discussion.

“One side or the other is going to win,” Justice Alito told the woman, Lauren Windsor, at an exclusive gala at the Supreme Court. “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.”

Ms. Windsor pressed Justice Alito further. “I think that the solution really is like winning the moral argument,” she told him, according to the edited recordings of Justice Alito and Chief Justice John G. Roberts Jr., which were posted and distributed widely on social media on Monday. “Like, people in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.”

“I agree with you, I agree with you,” he responded.

The New York Times article opened by editorializing about the significance of Justice Alito’s statements.

Justice Samuel A. Alito Jr. told a woman posing as a Catholic conservative last week that compromise in America between the left and right might be impossible and then agreed with the view that the nation should return to a place of godliness.

On MSNBC, Nicole Wallace had two curious legal “experts” on air to opine about the significance of Alito’s statements, Dahlia Lithwick and Ian Millhiser.

The Historical Society condemned Windsor’s actions.

We condemn the surreptitious recording of justices at the event, which is inconsistent with the entire spirit of the evening.

Whether or not social occasions should be used by activists to goad justices into conversations to be used against them, the fact remains that Windsor did it and Justice Alito said what he said. So what? Did Justice Alito confess to being a right-wing radical, bent on using his bench to impose “godliness” on a nation? Does expressing doubt about whether there are societal compromises that enable the polarized extremes in society to live together peacefully an admission that he wouldn’t rule impartially?

Much was made of Justice Alito’s radical embrace of “godliness,” which Lithwick extrapolated into “larger themes” reflected in the Dobbs decision. Millhiser, working up to a froth, asserted that there is now a “public awakening” to Alito’s radicalism, citing Alito’s dissent in Obergefell v. Hodges,

Coming in the wake of the Alito flag controversies, the contention is that Justice Alito effectively confessed to being a biased religious fanatic who uses his role as one of The Nine to assure that his side, the godly side, “wins” this battle. Is that the significance of these surreptitiously recorded statements? Is this really a confession of Alito’s perfidy, or rather a relatively benign statement of his concerns? Does his response to Windsor prove that he abuses his role as a judge in furtherance of his personal views? Are people like Lithwick and Millhiser, who despise Alito’s opinions (full disclosure, I am not an Alito fan by any stretch), assuming far too much about Justice Alito, or did he confirm their worst fears about him?

*Tuesday Talk rules apply.

13 thoughts on “Tuesday Talk*: Did Justice Alito Confess To Perfidy?

  1. Maurice Ross

    Lauren Windsor’s brand of journalism is despicable and Alito, with whom I disagree on everything, did nothing wrong. The media frenzy is not rational. The intellectual dishonesty and bias of Alito and Thomas is clear from their written work. They are biased and injudicious but journalistic pranks do nothing to address serious allegations of corruption which deserve congressional and DOJ investigations.

    1. Jill P McMahon

      Exactly. And what Roberts should be telling Alito, no matter how Alito receives the message. The Court is not looking good.

  2. Jeffrey M Gamso

    What we ask of jurors is that they be able to set aside their personal views and biases and decide the case based on the evidence presented in court and the instructions of law that the judge provides. And we eliminate (or try to) those prospective jurors who we believe unwilling or unable to do that in the case before them. The goal is an impartial jury. For the most part, it works.

    We ask, essentially, the same thing of judges and justices who, for the most part, try their damndest to do what we ask. And, for the most part, it probably works despite their differing understandings of how to interpret and apply precedents, statutes, and constitutions. But since we can’t, in the ordinary course of things, have both sides effectively exercise cause and peremptory challenges on the jurists, we rely on a system where they ought to be recused based on either actual partiality or the appearance of it.

    The problem, of course, is getting them to recognize their own appearance of partiality, a particular dilemma in a court (like SCOTUS or I should add the Ohio Supreme Court) where the individual jurist has complete discretion over his or her recusal.

    And, of course, not all judges (nor all jurors, it must be said) are perfectly willing to claim that they can and will be impartial when they know damn well that they won’t,

  3. DaveL

    First of all, as much as it might offend Windsor and her social circle, not to mention Lithwick and Millhiser, the idea that the nation ought to “return to godliness” is not a radical one in America, not by a longshot. Second, nowhere does Alito assent to any notion that the constitutional order, or the role of law, be subverted to serve the ends of restoring the country to “godliness”, nor does he endorse any use of state power for that purpose. I rather suspect their drawing that inference says more about their own proclivities in pushing their political agenda than it does about Alito’s.

  4. Pedantic Grammar Police

    Judges are human, and like other humans, they have biases and they act on those biases. It’s their responsibility to maintain the illusion of impartiality in order to make the system work. That being said, the admissions elicited from Alito are utterly mundane. It looks like the activist carefully crafted uncontroversial assertions with which any Christian would agree; assertions which would seem damning only to her audience of left-wing nutjobs.

    That being said, it’s disappointing that Alito wasn’t alerted by her usage of “like”, as Roberts clearly was. Anyone who uses “like” as an interjection is an idiot (or a “valley girl”) and therefore is probably a radical leftist.

  5. Mark Daniel Myers

    This is much ado about nothing. We’ve known what Alito thinks. This is no smoking gun. Get him to confess to leaking the Dobbs opinion and I’ll be impressed.

  6. PK

    Like, the progressive activist could have lead him better. “Return to godliness” is so weak and vague and subject to too many interpretations, many of which are completely benign or even positive. Really a poor performance for someone who otherwise seems cunning. “Return to godliness through the courts” or something else would have been so much more effective in implicating Alito personally. And now the element of surprise is lost, alas.

    Like, Alito didn’t do anything wrong here, despite her efforts.

    1. Steven G

      What he did wrong was to answer the questions in the way he did. Justice Roberts answered similar statements much better and more befitting his position. When have he had such low expectations of a Supreme Court Justice?

      What Alito said sucked, and was poor judgement on his part.

      Was what the activist did right? No, however we now have their statements.

      1. PK

        I can only respond to what I heard. Roberts was asked different questions than Alito with different contexts. I don’t hear Alito saying we are a Christian nation, whatever that means. All Alito says is something incredibly banal for a Christian. “Godliness” is also practically meaningless. I don’t know what Alito would have said in Roberts’ shoes or vice versa.

        To be clear my using “like” was not mocking the activist, rather it was in response to PGP above. I like associating with idiots and valley girls and radical leftists.

    2. Pedantic Grammar Police

      “led” not “lead”. Does college no longer include freshman English?

      [Ed note: Correcting a typo is fine, but don’t be a jerk about it.]

  7. freedomfan

    To be clear: When we see “according to the edited recordings”, we have heard exactly what the editor wanted us to hear. Pretending that we know what anyone really said – much less what they meant – is pure folly.

    But, even from the bits cited above, isn’t it a perfectly reasonable interpretation that Alito was agreeing that “winning the moral argument” is what he thinks her purported side needs to do, to further its goals of ‘godliness’ etc? Not that that’s necessarily the only interpretation. But, the immediate jump to a controversial interpretation is weak sauce if a harmless one also explains what was allegedly said.

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