Tuesday, June 18, 2024 | 2 a.m.
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Let me stipulate: I disapprove of pseudo-journalistic stings that surreptitiously record people, often public figures, in a gotcha moment. It’s unethical whether the trapper is the far-right Project Veritas or the left-leaning “advocacy journalist” who ensnared Justice Samuel A. Alito Jr. and his wife, Martha-Ann, two weeks ago.
And yet…. The court’s farthest-right justice didn’t have to answer in the unguarded, utterly inappropriate way that he did when Lauren Windsor, masquerading as a fellow Catholic conservative, approached him at the annual black-tie gala for the Supreme Court Historical Society.
No one made him agree, emphatically, that the nation must return “to a place of godliness,” or that there’s really no compromising with the left, as if he were a minister or a politician, not an impartial jurist.
Embarrassing as Windsor’s recordings are for Alito, the audio doesn’t tell us anything we didn’t already know: The justice shows bad judgment and has a right-wing, theocratic bias that should be disqualifying but for the fact that he enjoys lifetime tenure.
What is remarkable, though, is that Alito walked straight into the trap just when you’d think he’d be most cautious, amid the ongoing furor over disclosures that flags favored by pro-insurrection, pro-Trump and pro-Christian nationalist groups flew at the Alitos’ Virginia and New Jersey homes.
Lest anyone doubt that he could have avoided the snap of Windsor’s snare, she also baited conservative Chief Justice John G. Roberts Jr. at the same elite event, and he answered with the judicial temperament Alito lacks — impartially, rejecting Windsor’s leading assertions.
Still, Roberts gets no pats. The chief justice leads a court where for too long he has tolerated gift-grifting, by Justice Clarence Thomas especially and Alito, too. Lately he’s countenanced both justices’ refusal to recuse themselves from rulings on Donald Trump’s criminal liability, despite evident conflicts of interest arising from the actions of their pro-Trump spouses.
The new recordings almost certainly won’t change Alito’s refusal to recuse. Roberts, meanwhile, claims to be as powerless over Thomas and Alito — justices get to decide whether they should recuse from a case — as Thomas and Alito profess to be with their partisan wives. I’m not buying it.
The court, Alito and Roberts all have declined to comment on the recordings, first disclosed in Rolling Stone. The Supreme Court Historical Society, which hosted the gala, released a statement seeming to confirm the audios’ authenticity: “We condemn the surreptitious recording of justices at the event, which is inconsistent with the entire spirit of the evening.”
Ah, yes, the spirit of the evening. That would be off-the-record coziness between justices and the society’s wealthy donors, many of whom argue before the court or run businesses affected by the court’s decisions. The society has been in the news before. In 2022 a former antiabortion leader disclosed that for years he’d pressed rich supporters to join and donate to it, to gain social access to justices, including Alito and his wife.
Windsor certainly had extended access. When she suggested to Alito that the right shouldn’t negotiate with the left, he concurred at some length. “One side or the other is going to win,” he said, and added, “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.”
When she pressed on, suggesting that people “who believe in God” must win “the moral argument” and “return our country to a place of godliness,” Alito quickly assented: “Oh, I agree with you, I agree with you.”
Contrast that with Roberts. He rejected out of hand Windsor’s contention that the court must lead the nation onto a “moral path”: “That’s for people we elect.” And when she persisted, saying, “We live in a Christian nation,” Roberts rebutted: “I know a lot of Jewish and Muslim friends who would say maybe not. And it’s not our job to do that. It’s our job to decide the cases as best we can.”
I’d pass over the garrulous Martha-Ann Alito’s nearly six-minute chat with Windsor — the missus is not the justice — but for two points. First, she evidently shares her husband’s hostility to gay rights: “I have to look across the lagoon at the Pride flag for the next month,” she whined. Which goes to the second point: Mrs. Alito said she told her husband that she’d fly an antigay flag in response “when you are free of this nonsense.”
So, public service on the nation’s highest court is “nonsense.” I take her comment as confirmation that the 74-year-old Alito is itching to step down if Trump wins the election. That’s just one more reason to vote against the disgraced former president: We don’t want a much younger version of Alito replacing him for decades to come.
The partisan “stench” on the supermajority-conservative court that liberal Justice Sonia Sotomayor warned about in late 2021 just keeps getting more rancid. Last year, when Windsor similarly accosted Alito undercover, he told her he blamed the media for having “really eroded trust in the court” by its negative coverage.
Once again, the justice shows his bad judgment. The messenger isn’t the problem. He is.
Jackie Calmes is a columnist for the Los Angeles Times.
