by Noah Feldman
It’s hard to imagine a clearer violation of journalistic ethics than pretending to hold beliefs you don’t, asking Supreme Court justices if they agree, and surreptitiously recording their answers at a no-media dinner. The novelty of the stunt, however, shouldn’t distract us from the real takeaway, which is precisely that the recordings yielded nothing we didn’t already know.
The key conclusions are that Justice Samuel Alito is a religious man; his wife Martha-Ann likes political flags; and Chief Justice John Roberts is genuinely committed to the (somewhat unrealistic) idea that only elected officials — not judges — should make moral decisions.
The recording was obtained by liberal documentarian Lauren Windsor at the annual dinner of the Supreme Court Historical Society, itself a rather misunderstood event. As someone who’s been to the dinner (I was the speaker one year after writing a book on Supreme Court history) let me try to set the scene.
The dinner is a reasonably accessible way for a non-billionaire to hobnob with the justices: Anyone who buys a $500 ticket can attend, which is how Windsor got in. That might sound like a lot of money, but it’s much less than many non-rich people pay to go to sporting events or Taylor Swift concerts.
Yet the dinner feels elite. The dress code is black tie. The cause — supporting the society’s work on the history of the court — is worthy, but niche. And the dinner, which is supposed to be off the record, takes place in the great hall of the Supreme Court building, all marble and very grand.
The key point is that, at the dinner, the justices are comfortably at home (it’s their office, after all). They are also, to a degree, the effective hosts of the event. They seem relaxed and friendly, and they get to be real people. Or at least, they used to — now they will have to know they can be recorded by their guests.
Windsor’s recordings show the justices as the familiar figures we know. She got Justice Alito to say that in contemporary America, “there can be … a way of living together peacefully, but it’s difficult … because there are differences on fundamental things that really can’t be compromised.” Um, yes? That statement seems incontrovertibly true.
The false-flag journalist then insisted that people who believe in God must “keep fighting … to return our country to a place of godliness.” Alito agreed. Although godliness here is left vague, it’s hard to imagine a genuinely God-fearing person answering otherwise.
As for Mrs. Alito, she of the scores of flags flown at two homes, the most the provocateur could get was that she had been considering flying a Sacred Heart of Jesus flag to respond to a Pride flag in her neighborhood during June — but that her husband had asked her “Oh please, don’t put up a flag.” The exchange appeared to confirm Alito’s letter to two senators in which he essentially said (in the chastened tones of a beleaguered husband) that his wife likes flying flags and all he can do is ask her not to.
As for Roberts, the chief responded to Windsor’s prompts by giving his patented mini-lecture about how justices are just lawyers who shouldn’t take moral right and wrong into account. He also firmly rejected the suggestion that the US is a Christian nation and that the justices should be guided by that idea.
Those were great messages, ones Roberts deeply believes. They certainly echoed his famous comparison of a judge to an umpire whose only job is to call balls and strikes.
But before jumping to the conclusion that Roberts’ answers make Alito’s look bad, notice the limits of the idea that morality has no role in judicial decision-making. It’s hard to see how a court could make decisions about racial equality or abortion rights or gun control without taking some kind of moral stand. Justices Thurgood Marshall and Ruth Bader Ginsburg were great, morally driven advocates for equality who carried their moral values into their Supreme Court service. Even Justice Neil Gorsuch, a non-moral textualist by his own account, is clearly morally motivated in Indian law cases by the profound injustices done to the tribes over centuries. That seems praiseworthy, at least to me.
Justices are human beings, not machines. We should allow them to be humans, even at social events. And we should grow out of the fantasy of justices as perfectly impartial automatons free of human fallibility.
