By Dan McLaughlin
Tuesday, June 11, 2024
One of the hallmarks of the now–annual silly–season 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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