Saying the Loud Part Out Loud // Justice Alito is “caught” being a conservative

Clutched in panic were pearls across the nation (well, in some circles) recently, when a recording made secretly was publicized. In it, Supreme Court Justice Samuel Alito said something that no judge, at least in the eyes of the pearls-adorned, should ever even think, much less disclose.

The recording was made at the annual Supreme Court Historical Society dinner, by a filmmaker named Lauren Windsor. The clandestine conversationalist—she admitted to NPR that she had falsely identified herself to Mr. Alito as a conservative Christian—prodded the Justice to reveal his nefarious mindset. Her misrepresentation, she explained, was “in service of reaching a greater truth and in service of a public good.”

Thus was born a… nothingburger.

The full version of the audio was not shared by Ms. Windsor, but the snippet she revealed to the public has her telling Mr. Alito that there’s a need to “return our country to a place of G-dliness.” And—here comes the clincher: Feel free to sit down before reading further—he agreed!

The New York Times derisively sniffed that the phrase the Justice had greeted with approval is one “not commonly associated with legal doctrine.”

“I was definitely asking leading questions,” the flimflam filmmaker admitted, “but with the aim of really eliciting some kind of reaction from him.”

Leave aside the ethics of posing as someone one isn’t, and asking a public figure “leading questions.” Leave aside, too, that the Justice was expressing a personal opinion—he is a person, after all, a Catholic, as it happens, and an unabashed conservative.

In his ad hoc response to his enthusiastic ad hoc interviewer, he was not disavowing his pledge to judge cases based on the letter and spirit of the law. To be sure, there are times when a judge’s worldview plays a part in his or her judgment. But that is all part of the recipe of deciding cases.

But what Mr. Alito revealed to Ms. Windsor was on the order of his admitting to being from Trenton, New Jersey, and 74 years old, both of which he is.

And something else: He is a social conservative, a fact as public as his place of birth and age.

Back in 2020, in the keynote address to the National Lawyers Convention of the Federalist Society, Justice Alito posited that the Constitution’s guarantees of free speech, freedom of assembly and freedom of religion are under siege. “Religious liberty,” he said, “is in danger of becoming a second-class right.”

Defending the traditional definition of marriage, Mr. Alito pointed out that, these days, one can endanger one’s reputation and livelihood by defining marriage, as all civilized societies did until fairly recently. Doing so, he said, is today “considered bigotry.”

Two years later, after the Supreme Court overturned Roe v. Wade, a ruling in which Justice Alito wrote the majority opinion, he addressed a summit in Italy hosted by the University of Notre Dame. The topic was religious liberty, and he lamented the “growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant.”

“We can’t lightly assume that the religious liberty enjoyed today in the United States, in Europe and in many other places will always endure,” he said.

There was no need for undercover work to reveal the Justice’s beliefs. He has never made anything near a secret of them.

The aforementioned periodical, sniffing further, lamented that “An array of conservatives, including… church leaders and conservative state legislators, has openly embraced the idea that American democracy needs to be grounded in Christian values and guarded against the rise of secular culture.”

The values, though, that Justice Alito champions, may indeed reject the “rise of secular culture,” but they are not “Christian.” They are universally traditional.

Being a conservative, by the very definition of the word, means respecting elements of the past that are worthy of conserving. Still and all, Mr. Alito is fully aware and respectful of the First Amendment’s “Establishment Clause,” which prohibits Congress from making any “law respecting an establishment of religion.”

He just knows, too, and respects, as well, the rest of the sentence: “or prohibiting the free exercise thereof.”

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