Jaded as I am, I am still stunned by the stupidity of the Rolling Stone’s article on the “new, secret recording” of Justice Alito’s remarks and by how eagerly so many people and news outlets have parroted the article’s distorted take. A few observations:
1. The article asserts that Alito’s “unguarded comments highlight the degree to which Alito makes little effort to present himself as a neutral umpire calling judicial balls and strikes,” and it purports to draw a strong contrast between his remarks and the separately recorded remarks of Chief Justice Roberts. But as James Taranto points out in this Wall Street Journal piece, the article advances its claim only by utterly ignoring the “only discussion of jurisprudence in the 6½-minute recording” of Alito.
Here’s what Alito said, in an exchange with Lauren Windsor (posing as a conservative) that Rolling Stone does not quote or refer to:
Ms. Windsor: “I think it’s taking us to the brink of, you know, very serious and perhaps, like, non-repairable rifts in the country. And I for one am someone, like—I support your ruling on Dobbs. I support, like—I am very pro-life, but, like, you know, I don’t know how we bridge that gap. You know, like, how do we get people—”
Justice Alito: “I wish I knew. I wish I knew. I don’t know. It’s not—I don’t think it’s something we can do.”
Ms. Windsor: “But the court can’t do anything to—”
Justice Alito: “We have a very defined role. We need to do what we’re supposed to do, but this is a bigger problem. This is way above us. So I wish I knew the answer. I do.”
And here is the comparable part of Rolling Stone’s account of the Chief’s supposedly “far different response”:
Pressed on whether the court has an obligation to put the country on a more “moral path,” Roberts turns the tables on his questioner: “Would you want me to be in charge of putting the nation on a more moral path?” He argues instead: “That’s for people we elect. That’s not for lawyers.” Presented with the claim that America is a “Christian nation” and that the Supreme Court should be “guiding us in that path,” Roberts again disagrees, citing the perspectives of “Jewish and Muslim friends,” before asserting, “It’s not our job to do that. It’s our job to decide the cases the best we can.”
There is no substantive difference between Alito’s response and Roberts’s. Any insinuation that Alito regards the United States as a “Christian nation”—as a nation in which people of other religions or of no religion are second-class citizens—is baseless and is belied by his vigorous constitutional defense of religious pluralism.
2. The article’s headline blares “Justice Alito Caught on Tape Discussing How Battle for America ‘Can’t Be Compromised.’” But as the attentive reader will discover, Alito is making a commonplace observation that America is so polarized because “there are differences on fundamental things that really can’t be compromised.” That is surely an observation that nearly all of his most intense critics agree with. Ditto for his observation that on such fundamental things, “one side or the other is going to win.”
Far from relishing the polarization, Alito says (in another passage that Rolling Stone does not quote) that “American citizens in general need to work on this, to try to heal this polarization because it’s very dangerous.”
In a tweet that has been viewed some ten million times, Lauren Windsor asserts that by observing that “one side or the other is going to win,” Alito “admits lack of impartiality.” I can’t make any sense of her assertion.
3. The article highlights that Alito agrees with Windsor’s statement 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.” But far from being some sort of secret revelation that Windsor extracted from him, that is very much something that Alito has been saying in widely reported speeches. Here, as just one example, are excerpts from a speech he gave in July 2022:
The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection. That will not be easy to do.
If religious liberty is protected, religious leaders and other men and women of faith will be able to speak out on social issues. People with deep religious convictions may be less likely to succumb to dominating ideologies or trends, and more likely to act in accordance with what they see as true and right. Civil society can count on them as engines of reform.
You are welcome of course to disagree with Alito. If you are badly confused (see my point 3 here), you can even condemn his position as theocratic. But it’s beyond bizarre to find it newsworthy that Alito made a private comment that mirrors public speeches he has been giving.
4. It’s difficult to resist the conclusion that this “new, secret recording” that has nothing newsworthy in it is getting so much attention only because it provides Alito’s critics another opportunity to take a cheap whack at him.