"Utterly unethical": Experts alarmed at Alito's secretly recorded Christian nationalist "confession"

“How is this impartial justice?" questioned former U.S. Attorney Joyce Vance

By Charles R. Davis

Deputy News Editor

Published June 11, 2024 10:35AM (EDT)

U.S. Supreme Court Justice Samuel Alito (Alex Wong/Getty Images)
U.S. Supreme Court Justice Samuel Alito (Alex Wong/Getty Images)

If this is how Samuel Alito speaks in public – declaring it near-impossible to live beside the heathens of the left; ruling out the possibility of compromise – can you imagine what the U.S. Supreme Court justice had to say on the private jet of a right-wing billionaire?

As Rolling Stone reported Monday, the conservative jurist spoke earlier this month at a dinner hosted by the Supreme Court Historical Society. A liberal documentary filmmaker, Lauren Windsor, attending under her real identity but asking questions that would suggest she herself is far to the right, got Alito to weigh in on her ostensible take that liberals and conservatives can no longer really live side by side.

“I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” Windsor said, according to a recording she secretly made. “I think it’s a matter of, like, winning.”

At this point, a member of the nation’s highest court, particularly one already battling the appearance of partisan bias, should have reached for their bag of platitudes and maybe tossed out a quote from George Washington: This country was built, as its first president said, on “mutual deference and concession.” Anyone hearing this would have smiled politely, gone home and forgotten the exchange.

Alito did not play it safe, though, choosing instead to take the bait (and raising the question: What did he say to billionaire hedge fund manager and Republican megadonor Paul Singer on the luxury vacation they took together?).

“I think you’re probably right,” he told Windsor. “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.”

Alito added that he agreed with his questioner, who had said the country’s devout Christians “have got to keep fighting” to “return our country to a place of godliness.” Alito’s flag-loving wife, Martha-Ann, was also in attendance, ranting in a separate conversation with Windsor about the indecency of Pride Month.)

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It’s revealing but, of course, not a total shock that a hard-right appointee of former President George W. Bush, who already barely conceals his pro-Trump lean and refuses to speak with Democrats about his ethical obligations and transgressions, would feel comfortable in a public setting openly aligning himself with a politics of Christian nationalism (Martha-Ann, per the justice, already raised that banner outside their beach house).

Eric Segall, who teaches constitutional law at Georgia State College, said Alito’s remarks show him to be unfit for his job.

“The key part of the Alito tape is his concession that compromise on fundamental issues is probably impossible,” Segall wrote on social media. “A horrific quality for a judge,” he continued, “or human being”

Even in this age of polarization – Alito and the faux-conservative Windsor aren’t wrong about that – the justice’s comments are extreme. Chief Justice John Roberts, another Bush appointee, was pressed at the same event about whether the U.S. ought to be a “Christian nation.”

“I know a lot of Jewish and Muslim friends who would say maybe not,” he responded, adding that it’s not the Supreme Court’s “job” to make the country one, either.

No one doubts that Roberts is on the right, but he at least, here, is trying to uphold his end of the bargain, as a taxpayer-funded public servant who is supposed to serve a country, not just a political faction.

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Andrew Seidel, an attorney who has written about the “myth” that America’s founding deists were actually Christian crusaders, described Alito’s remarks as a disappointing but not surprising “confession" from a man who still insists he's free enough from bias to hear cases involving Donald Trump and the January 6 insurrection.

“Sam Alito is a Christian Nationalist,” he wrote on social media. “Anyone familiar with his opinions on religious freedom and church-state separation … has known this for some time.”

Indeed, as former U.S. attorney Joyce Vance noted, Alito’s behavior on the bench revealed his partisan allegiance long ago. While some conservative justices surprise observers of the court from time to time – Neil Gorsuch, for example, is an ardent defender of tribal rights – Alito is predictable. One analysis of Supreme Court rulings, cited by Vox, “found that Alito rules in favor of conservative litigants 100 percent of the time, and against liberal litigants in every single case.”

“How is this impartial justice,” Vance asked, “especially when his votes/rationale on cases are considered?”

Although they are a marginal presence on the American right, which has largely surrendered to Trump’s MAGA movement and the politics of unapologetic extremism, even some conservatives say Alito has crossed a line. In fact, Norman Ornstein, senior fellow emeritus at the American Enterprise Institute, argued that he does not have what it takes to be a judge at all.

“Utterly unethical, corrupt, a serial liar, and a radical lacking every element of judicial temperament,” Ornstein, electing not to hold back, wrote on social media. “This monster does not belong in civil society, much less on any court, much less on the Supreme Court.”

By Charles R. Davis

Charles R. Davis is Salon's deputy news editor. His work has aired on public radio and been published by outlets such as The Guardian, The Daily Beast, The New Republic and Columbia Journalism Review.

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John Roberts Joyce Vance Norman Ornstein Samuel Alito