The Faux Outrage Over the Alito Flags and Tapes – JONATHAN TURLEY

Below is my column in The Hill on the renewed attacks on Justice Samuel Alito after a liberal activist secretly taped a dinner conversation with him and his wife. The feigned outrage of pundits and politicians is absurdly unconnected to anything even remotely surprising or unethical in the comments.

Here is the column:

In a world of moral relativism, Lauren Windsor may reign supreme. The Democratic activist recently lied to justices in order to record answers at a dinner.

In an interview with CNN, the filmmaker (who has been lionized by many in the media for her dishonesty) cheerfully explained that she lies to “elicit truths that serve the greater public good.”

The “greater good” is to contribute to a campaign of harassment and attacks on Supreme Court justices by academics, the media and Democratic members. The chief target of these efforts lately has been the author of the decision that overturned Roe v. Wade, Justice Samuel Alito.

For years, the left has maintained a well-funded, unrelenting campaign against the court and its conservative majority. This has included an effort by such figures as Sen. Elizabeth Warren (D., Mass.) to pack the court immediately with a liberal majority. Warren declared that the court must be packed because it is daring to oppose “widely held public opinion.”

The statement, of course, ignores that the court was designed to resist public pressure (and even members of Congress) in order to protect the constitutional rights and liberties of minority groups.

Unsurprisingly, the usual suspects have assembled again to call for resignations and impeachments after Windsor’s surreptitious taping of both Alito and Chief Justice John Roberts. That includes Warren, who declared that “Alito is an extremist who is out of touch with mainstream America. His rising power on the Supreme Court is a threat to our democracy.”

It did not matter that what Windsor captured on her secret recording was neither surprising nor unethical. Pretending to be a religious conservative at a dinner of the Supreme Court Historical Society, Windsor successfully induced the deeply religious Alito to say . . . wait for it . . . that he believes the country should return to a place of “godliness.”

It was an otherworldly moment as this notoriously anti-conservative activist asked an unsuspecting Alito why the nation was so filled with rage. In the recording, Alito laments the divisions in the country, stating, “I wish I knew. I don’t know. It’s easy to blame the media, but I do blame them because they do nothing but criticize us. And so they have really eroded trust in the court…American citizens in general need to work on this to heal this polarization because it’s very dangerous.”

When pushed on what the court can do, Alito again answered honestly: “I don’t think it’s something we can do. We have a very defined role and we need to do what we’re supposed to do. But this is a bigger problem. This is way above us.”

There is nothing even slightly controversial there. But the quote being repeated, often in isolation, was when Alito acknowledged that, while “there can be a way of working, a way of living together peacefully…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.”

Warren and others already prove that very point on the left, as do many on the right. Again, this is not at all controversial. We are divided because people hold irreconcilable beliefs on which they are unwilling to compromise.  Imagine the reaction of liberals if Justice Sonia Sotomayor suddenly “compromised” on abortion rights.

But pundits and politicians have since lined up, feigning vapors at the thought of a justice saying privately that he believed in “godliness” and had little hope of “compromise” on many issues.

Warren seemed beside herself with shock, acting as if Alito’s bland, obvious observation were some clear sign of political bias: “I am most concerned about the appearance that Justice Alito has prejudged cases that will come before him. That is one of the biggest sins that a judge or justice can commit.” Bear in mind, these are the words of a senator seeking to pack the court with an ideological majority to give predictable rulings on major cases.

Likewise, Sen. Sheldon Whitehouse (D-R.I.) declared the tape to be proof that Alito is “a movement activist,” while Sen. Richard Blumenthal (D.-Conn.) denounced Alito’s “outrageous” behavior. Of course, the lying democratic activist was not outrageous, but the justice was outrageous in sharing his observation in a private conversation that the nation is irreconcilably divided on major issues.

Warren, Whitehouse, Blumenthal and many of the same pundits were strangely silent when liberal justices such as Ruth Bader Ginsburg engaged in actual partisanship, as when she openly opposed the election of Donald Trump and  discussed cases and controversies that might come before her. There was no demand for a resignation when Justice Sonia Sotomayor called upon students to politically oppose pro-life laws after acknowledging, “they tell me I shouldn’t.” There were no vapors at the thought of justices expressing their political sentiments from the left.

Media even cleaned up interviews for liberal justices. Katie Couric famously deleted disparaging comments made by Ginsburg about players kneeling during the National Anthem at NFL games, even though that matter could have ended up before the Supreme Court.

What is most galling is the pile-on over not just this manufactured controversy, but the earlier controversy over flags. Years ago, one of the best reporters at the Washington Post investigated a report that the Alitos had flown an upside-down American flag, to see if it was a political statement associated with Trump. Robert Barnes interviewed neighbors and concluded that it was not Justice Alito but his wife Martha-Ann who had hoisted the flag. Mrs. Alito, he learned, was responding to an ongoing spat with a neighbor.

Barnes and the Post responsibly decided not to run the story. That type of journalistic restraint is now anathema in our age of rage, with reporters denouncing the Post for failing to run a “blockbuster” story.

This was then amplified when the public was told that Mrs. Alito had also hoisted at one of their properties the Revolutionary War-era “Appeal to Heaven” flag, which has enjoyed something of a revival since it featured in the introductory sequence of the acclaimed 2008 miniseries on the career of President John Adams.

It is not clear how that story was a “blockbuster” — that a justice has a wife with a flag fetish, which includes flying the historic Pine Tree Flag. (Tellingly and amusingly, after the left added that flag to its list of Alito’s transgressions, Democratic politicians suddenly had to scramble to remove it from their own buildings to clear the way for the outrage.)

Of course, Windsor also targeted Mrs. Alito in her secret recordings at the dinner. The media again pounced on a line where she complained of “feminazi” critics and added, “Don’t get angry. Get even!”

That statement followed her suggestion that they may sue for defamation, and that “there’s a five-year defamation statute of limitations.” She also added that her husband had tried to keep her from flying her flags and getting into neighborhood spats, but that “he never controls me.” Indeed, she said he had prevailed on her not to fly a Sacred Heart of Jesus flag, but that she was not giving up the ghost even on that flag.

Windsor generously allowed that a Supreme Court spouse “certainly” has a right to speak, before adding that expected “but!” Such liberty, she asserted, may not apply to Mrs. Alito “when your spouse is one of the most powerful men in the country, you know, with his fingers on the scale, literally, of justice. I mean, are we going to say that we are going to do away with impartiality, the bedrock principle of our democracy, of our jurisprudence? Is it okay?”

Well, the answer is yes, Miss Windsor. It is okay.

We do not require justices to divorce outspoken or irascible spouses. We do not punish them for speaking freely in private conversations with bottom-feeding gotcha activists who secretly record them at dinners.

Justices are even allowed to have strong opinions about controversial issues in dinner conversations. Strong personal opinions do not on their own constitute conflicts of interest.

None of this will matter, of course. Democrats will continue to chase Alito around the Beltway like a scene out of Lord of the Flies. The absurd demands for meetings with justices and threats of subpoenas will continue to thrill liberal voters.

It is all part of the threats made by Senate Majority Leader Charles Schumer (D-N.Y.) on the steps of the Supreme Court. Schumer threatened the conservative justices, “You have released the whirlwind and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”

It is an extension of the pledge by activists to change the court “by any means necessary.” While thankfully denouncing the attempted assassination of Justice Bret Kavanaugh, liberals have proposed “more aggressive” targeting of justices at their homes, bribing conservatives to retire, and literally cutting off the justices’ air conditioning.

As Windsor explained, it is all just for “the greater good.”

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School. He is the author of The Indispensable Right: Free Speech in an Age of Rage (Simon & Schuster 2024)


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