Analysis: Samuel Alito, caught on tape, reinforces why people are skeptical of the Supreme Court

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Supreme Court Justice Samuel Alito really wasn’t caught. The religious zeal reflected in the surreptitious recordings made public this week has long been evident in Alito’s statements and written opinions.

But his remarks, captured secretly by a liberal activist presenting herself as a conservative Catholic, reinforce the pretense regarding any neutrality. Alito was notably cavalier about his views at a moment when he already faces public scrutiny over the provocative flags flown at his homes.

And as much as Alito’s new comments reflected his broader approach to the law, they also stood in contrast to Chief Justice John Roberts’ measured response when he was similarly baited at the Supreme Court Historical Society gala dinner last week.

An overriding question as the justices near the end of the 2023-24 session is how Alito’s attitudes will manifest themselves in rulings, including those that could affect the presidential election.

Even before the latest revelations on Monday, tensions behind the scenes were high and relationships among the justices were frayed. To reach majority decisions, the justices must work toward compromise, even as extracurricular ethical issues cause strains and drive them apart.

The new recordings also reveal conversations with the justice’s wife, Martha-Ann Alito. She is heard defiantly speaking of the flags hoisted at the Alito family homes, a subject of controversy because some of former President Donald Trump’s backers and the “Stop the Steal” campaign have flown such flags, including at the US Capitol attack on January 6, 2021.

Trump is directly in front of the high court this month, as the justices are deciding whether the former president should be immune from criminal prosecution on election-subversion charges arising from the 2020 presidential contest and Trump’s enduring challenge to President Joe Biden’s valid election.

The presidential campaign could also be shaped by two disputes over access to abortion. Alito wrote the high court’s 2022 opinion reversing the constitutional right to end a pregnancy. The new cases test the remaining availability of abortion, for example, through medication that has been approved by the US Food and Drug Administration.

Alito’s us vs. them attitude on religion

Alito, 74, is one of six Roman Catholics on the nine-member bench. More than most of his colleagues, he has not shied from headlining religious-sponsored events or quoting scripture. Themes of religious conservatism have permeated his opinions. He has opposed abortion rights, gay marriage and LGBTQ equality.

The new recordings, first made public by Rolling Stone Monday, capture Alito endorsing the suggestion of activist Lauren Windsor that “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 responded, “Well, I agree with you, I agree with you.”

Windsor, a progressive activist and documentary filmmaker, portrayed herself in private with Alito as on the far right. “I don’t know that we can negotiate with the left in the way that, like, needs to happen for the polarization to end,” she told him. “I think that it’s a matter of, like, winning.”

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

Over the years, Alito has demonstrated an us-versus-them attitude on religion, as well as ideological and political matters. He has declared religion under siege and cast himself on the side of the persecuted.

In a 2022 speech in Rome, a few weeks after he wrote the Supreme Court majority decision reversing the landmark 1973 Roe v. Wade, Alito declared: “Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power. It also probably grows out of something dark and deep in the human DNA – a tendency to distrust and dislike people who are not like ourselves.”

Earlier, during the peak of the coronavirus pandemic and government mandates against crowded indoor gatherings, Alito lamented “previously unimaginable restrictions on individual liberty,” including “churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur.”

Alito’s tone of aggrievement has deepened, even as he has more and more been on the winning side of religious disputes at the high court.

With his vote and the bolstered conservative majority, the Supreme Court has increasingly blurred the separation of church and state. In recent years, the court favored 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, based on her Christian beliefs, wanted to refuse to design wedding sites for same-sex couples.

Last month in a speech to graduates of Franciscan University in Steubenville, Ohio, Alito said, “Freedom of religion is also imperiled. When you venture out into the world you may well find yourself in a job or a community or a social setting when you will be pressured to endorse ideas you don’t believe, or to abandon core beliefs. It will be up to you to stand firm.”

Alito evidently saw a fellow traveler in Windsor.

Not so for Roberts, extremely cautious in any setting. Windsor tried to entice Roberts with comments about the United States as a “Christian nation.”

“Yeah, I don’t know that we live in a Christian nation,” Roberts is heard responding. “I know a lot of Jewish and Muslim friends who would say maybe not.”

In the brief recording clips made public by Windsor, Roberts takes pains to separate the role of judge from advocacy, saying, “It’s not our job to do that. It’s our job to decide the cases as best we can.”

‘I have to look across the lagoon at the Pride flag’

Neither Alito nor Roberts responded to CNN requests for comment. Alito also did not respond to a request related to the remarks of his wife, who was especially loquacious as Windsor drew her in.

Windsor told Martha-Ann Alito that she was a “fan” of her husband, and that her critics were “persecuting” her.

On the recording, Windsor expressed sympathy for Martha-Ann, who flew at her suburban Virginia home an upside-down US flag after Trump lost the presidential election, and apparently in the middle of a political quarrel with neighbors. She also flew an “Appeal to Heaven” flag at their home on the New Jersey shore. Martha-Ann said she wished she could counter a gay-rights flag being flown in celebration of June “Pride” month.

“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,” she told Windsor.

And in an apparent reference to Justice Alito, she added, “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 going to send them a message every day, maybe every week I’ll be changing the flags.’”

That’s the view of the justice’s wife, at least as it regards the flags. Justice Alito asserted in a May 29 letter to congressional leaders who sought his recusal from cases involving Trump, “My wife is fond of flying flags. I am not.”

Yet, there is likely little distance between them on religion. And these recordings from Justice Alito’s private conversations serve as a reminder of where he has been most publicly and overtly reshaping the law in America.

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