The secret recording by conservative Justice Samuel Alito, who supports the idea that the country should return to a place of “godliness,” has plunged the Supreme Court into even more controversy, outraged Senate Democrats and put Republicans on the defensive.
Senate Democrats are firing fresh salvos of criticism at Alito – and at Chief Justice John Roberts – for failing to rein in his conservative colleague, who had seemingly supported the idea that the nation should embrace Christian principles but failed to distance himself from his wife’s openly expressed hostility toward a neighbor’s gay pride flag.
“Alito is an extremist who has lost touch with the American majority. His growing power on the Supreme Court is a threat to our democracy,” said Senator Elizabeth Warren (Democrat, Massachusetts).
Warren is one of many Democrats who believe Alito is pursuing a partisan agenda, and they are emphasizing this at every opportunity ahead of the November election.
“I am most concerned about the appearance that Judge Alito has prejudged cases before him. That is one of the greatest sins a judge can commit, and his willingness to take such a public stance in the midst of a hotly contested political battle is deeply troubling,” Warren said.
“It undermines whatever shred of credibility the Supreme Court may have had,” she said.
Alito has come under intense scrutiny from Democrats, liberal activist groups and the media since passing the majority opinion in Dobbs v. Jackson Women’s Health Organization, which struck down abortion rights in 2022.
His draft opinion was sharply criticized because it relied on the 17th-century English jurists Sir Edward Coke and Sir Matthew Hale, with whom he referred to a historical tradition of treating abortion as a crime.
Critics of the opinion argued that it was driven by both religious teachings and legal considerations, and pointed to the Catholic background of the conservative judges who voted for it.
In a conversation with a liberal journalist posing as a Catholic conservative who secretly recorded her conversation with Alito at a Supreme Court gala event, the justice seemed to welcome the idea that the country must return to a more theological foundation and that on some issues compromise is impossible.
“One side or the other is going to win,” Alito told the journalist. “There may be a way to work together, to live together peacefully, but it’s difficult, you know, because there are disagreements on fundamental issues where you really can’t compromise.”
And when asked about the need to “restore our country to a state of godliness,” Alito replied, “I agree with you.”
Those comments sparked an outraged protest from Democratic senators, who urged Alito to recuse himself from all proceedings involving former President Trump, including a pending case over whether he should be granted immunity from prosecution for crimes related to his actions as president.
Senator Sheldon Whitehouse (D-I.), chairman of the Subcommittee on Federal Courts and Judiciary Oversight, posted on social media platform X: “Alito responded like a movement activist. Movement activists have their role, but not on the Supreme Court.”
“Alito is becoming an unpredictable opponent of the Court. He is making a mockery of ethics,” wrote Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee, on X.
Blumenthal also criticized Roberts for not responding more forcefully to Alito’s “behavior.”
“It is truly disheartening – indeed outrageous – that Roberts has condoned Alito’s conduct, thereby demeaning both the Court and himself,” the senator wrote.
Alito’s candid remarks follow reports that two flags linked to the January 6, 2021 attack on the Capitol were flying over his home in Virginia and his beach house in New Jersey.
Alito says his wife is responsible for the incidents. He himself had nothing to do with the fact that an upside-down American flag – a symbol of the “Stop the Steal” movement – was raised in front of his house, nor with the fact that an “Appeal to Heaven” flag was raised at his vacation home, which Trump supporters also carried on January 6.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) told reporters Tuesday that Democrats will try to advance Supreme Court ethics reform legislation in the Senate this week.
“We plan to make a push in the House this week to bring the ethics bill to the Supreme Court by unanimous consent,” he said.
The Supreme Court Ethics, Recusal and Transparency Act, sponsored by Whitehouse and Durbin, would require the Supreme Court to adopt a binding code of conduct and create a mechanism to investigate alleged violations of the code and other laws.
Durbin said he is also willing to add language to the Supreme Court’s annual funding bill requiring it to adopt an enforceable code of ethics.
“I am not ruling out any tactics at this time. Our first effort is to pass the bill that the committee passed by a vote of 11 to 10. We will try to do that this week with a [unanimous consent request,]” he said.
The Judiciary Committee chairman also hinted at other tactics to enhance pressure on conservative justices, citing their failure to properly disclose generous gifts and hospitality from conservative donors.
“New evidence may come to light,” he said.
Reports of Alito’s comments at the gala prompted Senate Republicans to rush to his aid.
They strongly condemned the deception by the journalist disguised as a Catholic conservative and called it the latest example of liberal harassment of conservative judges.
“It’s a pattern of chicanery. These people want to destroy public trust in all of our institutions, and they’re particularly targeting the Supreme Court,” said Senator John Cornyn (R-Texas), a ranking member of the Judiciary Committee.
Cornyn said the Democratic-backed Supreme Court ethics bill would not be considered in the Senate this week.
There is not a single Republican co-sponsor.
John Thune (SD), Republican whip in the Senate, said: “These are further attempts by the left to delegitimize the court.”
Even Durbin acknowledged that he had some concerns about the journalist speaking to Alito under false pretenses, pointing out that conservatives have tried to target Democrats in the same way.
“I comment on this with mixed feelings because it is true. It was obviously a secret recording that was not made with his knowledge, and we have seen this before when right-wingers have done the same thing to Democrats,” he said.
The battle for future control of the Senate is increasingly focused on the Supreme Court itself, as the November elections will determine whether President Biden gets another chance to appoint a liberal to the Supreme Court or whether Trump gets a chance to expand the conservatives’ 6-3 majority.
