Wednesday, June 12, 2024

Supreme Court Silly Season, Alito-Ambush Edition

By Dan McLaughlin

Tuesday, June 11, 2024

 

One of the hallmarks of the nowannual sillyseason efforts to discredit and delegitimize the Supreme Court is that the hit jobs are aimed to make up in volume what they lack in content. So long as there is a constant drumbeat of new stories, the narrative can be kept alive even as one story after another crumbles.

 

So here we go again: this time from that noted paragon of accuracy in journalism, Rolling Stone. The story, by Tessa Stuart and Tim Dickinson, is titled “Justice Alito Caught on Tape Discussing How Battle for America ‘Can’t Be Compromised.’” Lauren Windsor, described by Rolling Stone as “a liberal documentary filmmaker,” decided to ambush Justice Samuel Alito, his wife, and Chief Justice John Roberts at a cocktail party two years in a row and secretly record their conversations. In order to try to goad her targets, Windsor attempted to pass herself off as a religious conservative.

 

From Justice Alito, Windsor managed to extract a few general Lincolnian platitudes warning of the perilous state of political and cultural polarization in the country, and a lot of polite nodding along to what he thought was a private conversation. From Mrs. Alito, Windsor got confirmation of what’s already been reported in the flag stories: She’s the one responsible for flying the flags, she’s more politically combative (as a private citizen) than her husband, and she does and says what she wants even when he doesn’t agree. Roberts, for his part, gave such a buttoned-down response that Windsor and Rolling Stone had to settle for using him as a foil for Alito.

 

Stuart and Dickinson wrote this all up in wholly misleading terms that are contradicted by the audio posted by Windsor on Twitter. For example, Stuart and Dickinson claim that “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.” But Alito said nothing partisan at all, was explicit in recognizing the limits of the Court’s role, and is otherwise guilty here of nothing more than humoring a garrulous guest.

 

The Society Dinner

The setting here is important, and it reflects poorly on Windsor. The Supreme Court Historical Society, a private nonprofit devoted to the Court’s institutional history, relies on private donations. The organization holds an annual $500-a-head dinner, one of the perks of which is the chance to mix with the justices. If you’re wondering, under the Court’s new Code of Conduct, the justices are given some leeway in participating in these sorts of fundraising events so long as the event is not political or likely to raise a conflict:

 

A Justice may attend a “fundraising event” of law-related or other nonprofit organizations, but a Justice should not knowingly be a speaker, a guest of honor, or featured on the program of such event. In general, an event is a “fundraising event” if proceeds from the event exceed its costs or if donations are solicited in connection with the event. . . .

 

. . . A Justice may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fundraising activities and may be listed as an officer, director, or trustee. Use of a Justice’s name, position in the organization, and judicial designation on an organization’s letter head, including when used for fundraising or soliciting members, is permissible if comparable information and designations are listed for others.

 

Now, if you have attended many events of this nature, especially those that attract politically opinionated people, you know that a public figure such as a Supreme Court justice is likely to have to listen politely to a lot of people with all manner of opinions and to try not to offend them because they are paying guests giving to a worthy cause. Also, this isn’t an event open to the general public, so while we would not expect the justices to go on rip-roaring partisan tirades, they would also expect that their words would not be broadcast nationally — so they can speak a little more freely without worrying that their remarks will create some sort of public appearance of political commentary.

 

Justice Alito’s Defined Role

In the recordings — or at least what Windsor portrays as complete recordings — Windsor starts off painting herself as a faithful Catholic asking about “the polarization in this country” and “how do we repair that rift.” She then adds, “I don’t know that we can negotiate with the Left in the way that needs to happen for the polarization to end. I think that it’s a matter of, like, winning.”

 

EXCLUSIVE UNDERCOVER AUDIO:

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

 

— Lauren Windsor (@lawindsor) June 10, 2024

 

Alito’s response could come straight out of Abraham Lincoln’s “House Divided” speech or one of his inaugurals, noting the difficulty of resolving fundamental clashes of values while somewhat wistfully expressing his wish for peaceable coexistence:

 

I think you’re probably right. 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.

 

That’s just good civics! Political scientists have written about this problem at vast length, and the justices have remarked upon it themselves in written opinions. And yet, Alito’s opinion in Dobbs, for example, didn’t try to produce an all-or-nothing solution where one side wins; he undid the effort in Roe v. Wade to use the judicial system to impose such as solution. Dobbs sent the question of abortion back to the political system, where compromise is possible if the political will and desire for it exist. And lo and behold, our system has not produced that. Are we supposed to be offended that Alito said something true?

 

Windsor then tried another tack: “I think that the solution really is like winning the moral argument. 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.” Alito simply responded, “I agree with you. I agree with you.” I’m sure he didn’t think he was committing to some sort of political manifesto by offering some affirmation.

 

Winning moral arguments is, of course, the whole history of our politics and how it is supposed to work. And if the worst thing you can say about a Supreme Court justice is that he’s generically in favor of “godliness,” that says more about you than it does about him. John Jay, our very first chief justice, was a publicly faithful Christian who talked about the gifts of Providence in The Federalist Papers and went on, after leaving the bench, to be president of the American Bible Society.

 

After that, Windsor starts to rant about liberals, and we don’t hear what happens next. Instead, the audio cuts to a recording she presents as having been made at the prior year’s dinner, where Windsor prompted Alito to talk about polarization and a loss of public trust in the Court. His response to “How do we get back to that?”:

 

ALITO: I wish I knew. I don’t know. It’s easy to blame the media, but I do blame them because they do nothing but criticize us. And so they have really eroded trust in the Court. I don’t know. I really don’t know. I mean, ordinary people — “ordinary” isn’t the right word — American citizens in general need to work on this, to try to heal this polarization because it’s very dangerous. I do believe it’s very dangerous. . . . I don’t think it’s something we can do.

 

WINDSOR: But what can the, but the Court can’t do anything to —

 

ALITO: We have a very defined role, and we need to do what we’re supposed to do. But this is a bigger problem. This is way above us, so I wish I knew the answer. I do.

 

If you’re familiar with Rolling Stone, it won’t surprise you that Stuart and Dickinson leave out this conversation, in which Alito not only laments polarization but emphasizes the limits to what the Court can do because, he says, “we have a very defined role” and need to stick to it. After that, Windsor quizzes Alito about the Dobbs leak, and he laments that the Court lacks the law-enforcement powers to enable the marshal to get to the bottom of it.

 

Mrs. Alito

EXCLUSIVE UNDERCOVER AUDIO:

Martha-Ann Alito Unfurled

 

“I want a Sacred Heart of Jesus flag because I have to look across the lagoon at the Pride flag for the next month.” pic.twitter.com/okNsW7SPlu

 

— Lauren Windsor (@lawindsor) June 10, 2024

 

Mrs. Alito, asked about the Appeal to Heaven flag, confirmed what we already knew about the flag controversy, and left no doubt about it:

 

The feminazis believe that he should control me. So they’ll go to hell. He never controls me. . . .

. . . You know what I want? I want a Sacred Heart of Jesus flag because I have to look across the lagoon at the pride flag for the next month. . . . And he’s like, “Oh, please, don’t put up a flag.” I said, “I won’t do it because I’m 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.” They’ll be all kinds. I made a flag in my head. This is how I satisfy myself. I made a flag. It’s white and it has yellow and orange flames around it. And in the middle is the word “vergogna.” “Vergogna” in Italian means shame. . . . Shame, shame, shame on you. You know?

 

For the people still trying to spin the theory that Justice Alito is lying about who was responsible for the flags at their house and beach house, Mrs. Alito certainly sounds very convincingly like somebody who thinks and cares quite a lot about flags. She may not be as temperate as her husband, but then, she doesn’t have a job that requires it.

 

Mrs. Alito, not being constrained by a judicial role, felt freer to vent, but her ire was mostly directed at the media, which has been vicious to her:

 

It’s okay because if they come back to me, I’ll get them. I’m gonna be liberated, and I’m gonna get them [the media]. . . . There’s a five-year defamation statute of limitations. . . .

 

Don’t get angry, get even. . . .

 

I don’t need their approval for anything in my life. I need nothing from them. . . . Look at me, I’m German, from Germany. My heritage is German. You come after me, I’m gonna give it back to you. And there will be a way — it doesn’t have to be now — but there will be a way they will know. Don’t worry about it. God — you read the Bible — Psalm 27 is my psalm. Mine. Psalm 27, the Lord is my God and my rock. Of whom shall I be afraid? Nobody.

 

If there’s any news here at all, it’s that Mrs. Alito seems to be biding her time waiting for when her husband retires so she’s done having to stay quiet.

 

One unfortunate side effect of this whole thing is that, as Sarah Isgur noted, Windsor “managed to make it less likely that justices will attend public events or engage with people they don’t already know.” As Mrs. Alito commented in the recording, the additional security for the justices already prevented her husband from being able to go back to Wounded Warrior Project events. None of that is good.

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