CNN
—
Supreme Court Justice Samuel Alito has not actually been caught. The religious fervor reflected in the secret recordings released this week has appeared in Alito’s statements and opinions before.
But Alito’s remarks, secretly filmed by a liberal activist calling himself a conservative Catholic, bolstered any pretense of neutrality, and were a conspicuously nonchalant display of his views at a time when he was already facing intense public scrutiny over a provocative flag that flew in his home.
Justice Alito’s new comments reflect his broader approach to the law but also contrast with the measured response of Chief Justice John Roberts, who was similarly challenged at the Supreme Court Historical Association’s gala dinner last week.
As the 2023-24 session draws to a close, the most important question is how Justice Alito’s stance will be reflected in his decisions, including those that could affect the presidential election.
Even before Monday’s latest revelations, tensions had been building behind the scenes and relations between the justices had deteriorated. To reach a majority decision, the justices must work toward compromise, even if off-campus ethics issues cause tension and strain personal relationships.
The new recording also features a conversation with the justice’s wife, Martha Ann Alito, in which she can be heard speaking defiantly about the flag that flies in the Alito family home — a controversial issue after supporters of former President Donald Trump and some in the “Stop the Steal” campaign flew such a flag, including during the Jan. 6, 2021, storming of the U.S. Capitol.
01:02 – Source: CNN
Listen to the secret recording of Martha Alito discussing the flag controversy
Trump’s case is set to be heard by the Supreme Court this month as the justices decide whether he should be immune from criminal prosecution on charges of subversion stemming from the 2020 presidential election and Trump’s persistent challenges to the valid election of President Joe Biden.
The presidential election could also be decided by two disputes over abortion rights. Justice Alito wrote the Supreme Court’s 2022 decision that overturned a constitutional right to abortion. New cases will test whether medication abortions approved by the Food and Drug Administration, for example, will remain available.
Alito, 74, is one of six of the nine justices who are Catholic. More than most, he has not shied away from headlining faith-related events or quoting the Bible. Themes of religious conservatism permeate his opinions. He opposes abortion rights, same-sex marriage and LGBTQ equality.
The new recording, first published by Rolling Stone magazine on Monday, hears Alito support a suggestion by activist Lauren Windsor that “the people of this country who believe in God must continue to fight for it, to restore this country to its sanctuary.”
Alito responded, “Well, I agree, I agree.”
Windsor, a progressive activist and documentary filmmaker, portrayed herself as a far-right winger when she met privately with Alito. “I don’t know if I can negotiate with the left in the way that’s necessary to end polarization,” she told Alito. “I think this is a matter of winning.”
Alito responded, “I think you’re probably right. One of us will win. I don’t know. I mean, there may be ways to live together peacefully, ways to work together, but it’s difficult, because there are fundamental differences that can’t be compromised. You can’t compromise. So it’s not like there’s a middle ground to divide.”
Alito has long adopted an “us-versus-them” stance on religious, ideological and political issues, declaring that religion is under siege and putting himself on the side of the persecuted.
“Religious freedom is under attack in many places because it is dangerous to people who want to wield total power. It also stems from something dark deep in human DNA: the tendency to distrust and dislike people who are different from us,” Alito declared in a 2022 speech in Rome, weeks after he authored the Supreme Court’s majority opinion overturning the landmark 1973 Roe v. Wade decision.
03:12 – Source: CNN
Filmmaker reveals why he secretly recorded Supreme Court Justice Alito and his wife
Previously, at the peak of the coronavirus pandemic and government orders banning crowded indoor gatherings, Alito had lamented “previously unimaginable restrictions on individual liberty,” including “churches being closed on Easter Sunday and synagogues being closed on Passover and Yom Kippur.”
Justice Alito’s tone of indignation has grown stronger even as he has been winning more and more religious disputes before the Supreme Court.
With his vote and a strengthened conservative majority, the Supreme Court has increasingly blurred the separation of church and state. In recent years, the Court has sided with a public high school football coach who prayed on the field after games, ruled that state tuition assistance programs open to public and private schools must cover religious institutions, and sided with a website designer who wanted to reject the design of a same-sex couple’s wedding site based on his Christian faith.
“Religious freedom is also at risk. As you go out into the world, in your jobs, in your communities and in social settings, you will face pressure to support ideas you do not believe in or to abandon your fundamental beliefs. It is up to you to stand firm,” Alito said in a speech to the commencement of Franciscan University in Steubenville, Ohio, last month.
Alito apparently saw his companion in Windsor.
This was not the case with Roberts, who was extremely cautious under any circumstances, and Windsor tried to tempt him by describing the United States as a “Christian nation.”
“Well, I don’t know if we live in a Christian country,” Roberts replies, “and I have a lot of Jewish and Muslim friends who would say maybe not.”
In a brief audio clip released by Windsor, Roberts was at pains to distinguish between his role as judge and his role as advocate, saying, “It’s not our job to advocate. It’s our job to decide the case as best we can.”
Neither Alito nor Roberts responded to CNN’s requests for comment. Alito also did not respond to requests for comment about his wife, who became particularly talkative once Windsor engaged her.
Windsor told Martha Ann Alito that she was a “fan” of her husband and that his critics were “persecuting” her.
In the recording, Windsor sympathized with Martha Ann, who hung an upside-down American flag at her suburban Virginia home after President Trump lost the presidential election, apparently in the midst of a political dispute with a neighbor. She also hung an “Appeal to Heaven” flag at her coastal New Jersey home. Martha Ann said she wished she could counter the gay rights flags that are flown in celebration of Pride Month in June.
“You know what I want? I want a Sacred Heart of Jesus flag, because for the next month or so I’ve got to see the Pride flag across the lagoon,” she told Windsor.
Then, referring to Justice Alito, she added, “And he said, ‘Oh, don’t put up the flag,’ and I said, ‘I’m going to do what you say, so I won’t, but once you’re free of this nonsense, I’m going to put up the flag and I’m going to send them a message every day, maybe every week, and I’m going to change the flag.'”
At least when it comes to the flag, that’s the view of the justice’s wife. “My wife likes the flag flying. I don’t,” Justice Alito argued in a May 29 letter to congressional leaders who had asked him to recuse himself from Trump-related cases.
But when it comes to religion, there seems to be little distance between them, and the recordings of Justice Alito’s private conversations serve as a reminder of the area in which he has most publicly and openly reformed American law.
