June 13, 2024

Justice Samuel Alito spoke candidly about the ideological battle between the left and the right — discussing the difficulty of living “peacefully” with ideological opponents in the face of “fundamental” differences that “can’t be compromised.” He endorsed what his interlocutor described as a necessary fight to “return our country to a place of godliness.” And Alito offered a blunt assessment of how America’s polarization will ultimately be resolved: “One side or the other is going to win.”

Alito made these remarks in conversation at the Supreme Court Historical Society’s annual dinner on June 3, a function that is known to right-wing activists as an opportunity to buttonhole Supreme Court justices. His comments were recorded by Lauren Windsor, a liberal documentary filmmaker. Windsor attended the dinner as a dues-paying member of the society under her real name, along with a colleague. She asked questions of the justice as though she were a religious conservative.

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.

The recording, which was provided exclusively to Rolling Stone, captures Windsor approaching Alito at the event and reminding him that they spoke at the same function the year before, when she asked him a question about political polarization. In the intervening year, she tells the justice, her views on the matter had changed. “I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” Windsor says. “I think that it’s a matter of, like, winning.”

“I think you’re probably right,” Alito replies. “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.”

Windsor goes on to tell Alito: “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,” replies Alito, who authored the Supreme Court’s 2022 Dobbs decision, which reversed five decades of settled law and ended a constitutional right to abortion.

Similar questions Windsor asked of Chief Justice John Roberts at the same event elicited a far different response. (George W. Bush nominated both men to the Supreme Court in 2005; at the time, Roberts famously used a metaphor of a baseball umpire to describe his judicial philosophy.)

In an audio recording of that exchange, Roberts takes issue with Windsor’s assertion that the nation is unusually polarized, historically, citing the high tensions of the Vietnam War era, for example. He also insists that the Supreme Court’s current role is not exceptional. “The idea that the court is in the middle of a lot of tumultuous stuff going on is nothing new,” Roberts says.

Pressed on whether the court has an obligation to put the country on a more “moral path,” Roberts turns the tables on his questioner: “Would you want me to be in charge of putting the nation on a more moral path?” He argues instead: “That’s for people we elect. That’s not for lawyers.” Presented with the claim that America is a “Christian nation” and that the Supreme Court should be “guiding us in that path,” Roberts again disagrees, citing the perspectives of “Jewish and Muslim friends,” before asserting, “It’s not our job to do that. It’s our job to decide the cases the best we can.”

Although deeply conservative, Roberts now often finds himself outflanked by a far-right, five-justice majority faction — swelled by Donald Trump’s Supreme Court appointments — composed of Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Alito’s comments add to the controversy surrounding the conservative justice. Alito and his wife, Martha-Ann, have been embroiled in a flap over two flags flown at their residences that have also been adopted by right-wing factions that contest the legitimacy of the results of the 2020 election.

The first flag — a U.S. flag flown upside down — is a marker of maximal political distress. It was adopted as a symbol of the “Stop the Steal” movement that rallied to keep Donald Trump in office, culminating in the riots at the Capitol on Jan. 6, 2021. This flag was documented flying at the Alitos’ Virginia home on Jan. 17, 2021, days before President Joe Biden’s inauguration.

The second flag is the “Appeal to Heaven” flag, a Revolutionary War-era banner. The “Appeal to Heaven” language references philosopher John Locke, who argued that, when earthly political appeals are exhausted, men have the right to take up arms and let God sort out the justness of the cause. While the Appeal to Heaven flag was not always controversial, it has been revived by militant Christian nationalists and was also a potent symbol on Jan. 6. This flag was flown at the Alitos’ vacation home in New Jersey in 2023.

Democratic congressional leaders cited the displays in calls for Alito to recuse himself from cases involving Jan. 6 defendants, as well as the case to determine whether Trump is immune from prosecution over his efforts to subvert the outcome of the 2020 election. Alito rejected the call for recusal in a May 29 letter. He attributed both banners to his wife.

“My wife is fond of flying flags. I am not,” he wrote. Alito claimed that the upside down U.S. flag was a response to “a very nasty neighborhood dispute,” and of the Appeal to Heaven flag wrote that neither he nor his wife were aware of “any connection between this historic flag and the ‘Stop the Steal Movement.’” He dismissed any notion that his “impartiality might reasonably be questioned,” and declared that he was “duty-bound to reject” the recusal demand.

Windsor spoke with Rolling Stone about her decision to attend the event and record her conversation with Alito. “Because the Supreme Court is shrouded in secrecy, and they’re refusing to submit to any accountability in the face of overwhelming evidence of serious ethics breaches, I think that it’s justified to take these types of measures,” she says. (Last year, ProPublica reported that Alito failed to disclose a 2008 private jet flight provided by a billionaire conservative donor with business before the court.)

Windsor says she wants to give the public a “window into a body that is increasingly powerful and increasingly willing to overturn precedent.” She has been working on a documentary, Gonzo for Democracy, which will chronicle the growth of Trumpism, election denial, and religious extremism.

“One of the main drivers for me in this work is showing Americans that we are at a crossroads: Do we embrace the idea of secular democracy and uphold that tradition, or do we start to transition into a Christian theocracy?” she adds.

The Supreme Court Historical Society is a nonprofit organization that collects justices’ writings and other artifacts. Anyone can pay $150 to become a dues-paying member and rub elbows with the court’s nine justices at events like the dinner where Windsor spoke with Alito. (Tickets for the dinner were an extra $500.) The New York Times has reported that, for years, right-wing activists who sought to influence the justices’ views have been encouraged to donate to the organization and use its events as an opportunity to cultivate personal relationships with the jurists.

The Rev. Rob Schenck, founder of the evangelical group Faith and Action, told the Times that becoming a member of the society was one tactic he promoted as part of his group’s yearslong campaign to shape conservative justices’ views. (Schenck left the organization in 2018; it is now known as Faith and Liberty and is affiliated with Christian conservative litigation shop Liberty Counsel.)

In 2022, Schenck went public about his work at Faith and Action amid an investigation into who leaked an early draft of the Dobbs decision, which overturned Roe v. Wade. Schenck sent a letter to Roberts revealing that in 2014, one of Faith and Action’s donors informed him that she had learned the outcome of Hobby Lobby v. Burwell, a decision that ultimately exempted employers from offering insurance coverage for birth control, at a D.C. dinner party hosted by the Alitos weeks before the ruling was released to the public. (Alito denied disclosing the Hobby Lobby decision.)

Windsor previously attended the Supreme Court Historical Society’s annual dinner last year. In that audio recording, she asks Alito whether he thought the individual who leaked a draft of the Dobbs decision would ever be “ferreted out.”

“Well, it’s hard,” Alito says, before taking a long pause. “You can’t name somebody unless you know for sure, and we don’t have the power to do the things that would be necessary to try to figure out — to nail down exactly who did it. That’s the problem. And even then, we might not be able to do it. But we don’t have the power to subpoena people to testify, to subpoena records, phone records, or other things like that. We don’t have the authority, so —”

Windsor interjects: “It just seems crazy that you can’t because it’s so detrimental to the trust [that] the public places in the Supreme Court.”

“Yeah, well, we’re not a law enforcement agency, you know?” Alito replies briskly. “People have certain rights to privacy. So, law enforcement agencies can issue subpoenas and get search warrants and all that sort of thing, but we can’t do that. So, you know, our marshall, she did as much as she could do. But it was limited.”

The identity of the person who leaked the Dobbs decision has never been confirmed. Two theories have emerged about that person’s motivation: that it was a liberal who hoped to ignite a pressure campaign and change the outcome, or that it was a conservative determined to lock the majority in, discouraging any justice who may have harbored doubts about the monumental decision from defecting.

Barrett, the Times has reported, initially supported hearing the Dobbs case, then later reversed herself and voted against it, telling Alito it was not the time to consider the issue. Four justices — conservatives Kavanaugh, Gorsuch, Thomas, and Alito — agreed to take the case despite her concerns. Barrett ultimately joined them in overturning the federal right to abortion. 

Alito has publicly rejected the idea that a conservative would have leaked the opinion he wrote, declaring that the decision’s premature release made the conservative justices “targets of assassination.”

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