It’s another day, and we have another fake controversy involving Justice Alito. 

Previously, the media got upset at him because apparently these alleged feminists think his wife should be seen and not heard, and are very upset that Alito can’t control his woman. As we joked at the time: ‘are any of the people saying this married men?’

This time, Rolling Stone has gone the full James O’Keefe, and got secret recordings of Justice Alito and ERMAGAWD you won’t believe what he said! He said that some issues can’t be compromised on, that while the Supreme Court can’t do much about social morality, he hopes we become more moral and Godly as a society.

We know. We are fainting all over our couches, saying ‘my word’ and ‘I never’ while dropping monocles out of our eyes, and clutching all of our pearls. Such shocking revelations, amirite?

No, not really. As we think you will see by the end, the story is a complete nothingburger, but that doesn’t stop Rolling Stone Magazine from breathlessly pretending they have the most scandalous undercover expose since James O’Keefe and Hannah Giles exposed Acorn:

Justice Alito Caught on Tape Discussing How Battle for America 'Can’t Be Compromised.' A Rolling Stone exclusive.

In a new, secret recording, the Supreme Court justice says he “agrees” that the U.S. should return to a place of godliness.

Story: https://t.co/b3AkryMT5O pic.twitter.com/MZwqzdHZYz

— Rolling Stone (@RollingStone) June 10, 2024

All of this was based on a single, brief recording, you can listen to, here:

EXCLUSIVE UNDERCOVER AUDIO:
Sam Alito x John Roberts x The Undercurrent 🧵

1/ Justice Alito admits lack of impartiality with the Left, says: “One side or the other is going to win.” pic.twitter.com/b5nmxToZ9z

— Lauren Windsor (@lawindsor) June 10, 2024

Now, first off, before anyone asks, this recording is almost certainly legal. The Rolling Stone article says that it was recorded at two different dinners with at the Supreme Court Historical Society. We looked it up, and they took place in Washington, D.C. and D.C. is a ‘one party’ recording jurisdiction. The gist of that means that because Windsor consented to the recording, the recording was clearly legal.

And more basically, this isn’t a private conversation, anyway. It is by all reports one of those formal (boring) parties, and you can hear lots of people talking in the background during the recording. Contrary to what Susanna Gibson thinks, a recording can’t be illegal if you don’t have a reasonable expectation of privacy to start with.

By the way, we are sure all the people upset at James O’Keefe over the years are going to be equally outraged that someone secretly recorded a Supreme Court justice, right? Right?

Yeah, we didn’t think so.

Also, honestly, regardless of the legality of such recordings, we suspect that most Supreme Court justices just assume they might be recorded at any time, and are appropriately cautious.

You also have to understand a little something about the training of lawyers—and Alito was trained as a lawyer. Normally, when people write, we expect most of the audience to have some basic good faith in reading what we write. Lawyers, on the other hand, regularly face situations where the person reading your writing aren’t just reading in bad faith, but in the worst faith possible. The most extreme examples of this are wills and contracts. Both are legal documents tied intimately to financial gain where there is a good chance that someone else down the road—probably another lawyer—will try to twist the words any way they can to get an advantage. Thus, lawyers learn to do their best to avoid any possible misinterpretation. And while it is naturally harder to speak with the same precision as we have when we write, lawyers tend keep that possibility of extreme bad faith in mind as they speak, just as a matter of intellectual habit. Therefore, we think Alito always knows that he might be recorded and does his best to avoid saying things that can be misinterpreted.

But, of course, nothing can be done to prevent a person from taking words grossly out of context and basically filling in their own false meaning or even lying about them. For instance, Mrs. Windsor writes in that post:

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Justice Alito admits lack of impartiality with the Left, says: ‘One side or the other is going to win.’

Except he said no such thing. And to circle back to Rolling Stone's post, he didn't say anything about the 'battle for America,' either.

You have to start with what he was responding to. She was talking about polarization: that is the belief that political disagreements in our society is bad and we need to agree more. And she herself said to him that she thought the solution was winning. According to her own subtitles she said

I don’t know that we can negotiate with the Left in the way that needs to happen for the polarization to end. I think that it’s a matter of winning.

It is in that context he responded by saying:

I think that’s right. One side or the other, 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’re going to split the difference.

Seriously, can any rational person deny this? For instance, take free speech. A disturbingly large percentage of people want to make it a crime to ‘misgender’ someone:

Misgendering Should Be a Crime, According to Millennials https://t.co/DLYmWI8vQj

— Deacon Christopher “Risto” Purdef (@TheNous_3) July 21, 2023

Presumably this would be done under some kind of ‘hate speech’ rubric. But the Supreme Court has said that alleged hate speech is protected by the First Amendment, most recently in Matal v. Tam, 582 U.S. 218 (2017) and the decision was unanimous.

But returning to the point of polarization, there is clearly no room for compromise. You either believe there should be a hate speech exception to the First Amendment or you don’t. How do you compromise on that? And how do you just live and work with people when they want to force you to say things you disagree with under threat of prison? When someone tells you have to say there are five lights when you know there are only four, you can’t compromise: You have to say there are only four.

And this is true on one issue after another. Some people think abortion is murder, some say it is a right. Some people think that the government can force people to take a vaccine, some say it can’t. Some people think every Jew in Israel should be murdered, while others think a second Holocaust is bad, actually. How exactly does anyone expect these things to be compromised on? Sometimes you can’t just ‘split the baby.’

And pointing out that people can’t compromise on these issues actually shows a proper judicial mindset. Alito has sought to understand the positions on both sides, and to find where they can come together and where, philosophically, they cannot. Don’t we want justices who can understand both sides, even if they don’t agree with them?

Sadly, it goes on:

Windsor: It’s just. I think the solution is like winning the moral argument. Like people in this country who believe in God have got to keep fighting for that, to return this country to a place of godliness.

Alito: I agree with you. I agree with you. 

And if you listen to the audio in context, you will notice that Windsor is doing most of the talking and not really giving Alito much chance to speak. So we don’t know if he would have elaborated on his response, and maybe pointed out some mild disagreement, if she didn't monopolize the conversation. But we will note that she is talking about the ‘moral’ argument, as opposed to the legal argument, which places that argument outside of the courts. Alito is allowed to wish Americans were more Godly. Indeed, he can wish that every American voluntarily decided to convert to Catholicism. While this author isn’t a Catholic, there is nothing wrong with believing in your faith and hoping that other people peacefully, voluntarily convert to it, whatever that faith is. Indeed, if you don’t want others to believe in your religion, can you even say you belong to your religion? It at least seems selfish to believe that you have the answers to life’s greatest questions and perhaps even the key to eternal life, and not want to share it with others.

Then she goes on, and another person interrupts … and … we don’t hear any more from that conversation. It just cuts off. Maybe that cut was fair, maybe it wasn’t, but we have no way of knowing. Will she release the uncut audio just like James O’Keefe did?

But she also includes another conversation with Alito from 2023 and the same dinner:

Windsor: [H]ow do we get America back to a place of like, really, like, less polarization? Cause I feel like the court is undergoing this period of turmoil, like people don’t trust in I think, just the like, this is the last bastion, I think, of public trust, and how to we get back to that?

Alito: 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.

Hey! Not everyone in the media beats up on you, Mr. Alito! We often say you are right and we think what criticisms we do level against you are fair.

Alito goes on:

Alito: I don’t know. I don’t know. I mean ordinary people, ordinary isn’t the right word, American citizens in general need to work on this, to try to heal this polarization because it is very dangerous. I do believe it is very dangerous.

Windsor: I think it’s taking us to the brink of, you know, very serious, and perhaps non-reparable rifts in the country. And I for one am someone like I support your ruling on Dobbs [the decision overturning Roe v. Wade]. I support life. I am very pro-life. But like, you know, I don’t know how we bridge that gap. You know like how we get people.

Alito: I wish I knew. I wish I knew. I don’t know. It’s not… I don’t think its something we can do.

Windsor: But what can the … but the court can’t do anything to …

Alito: We have a very defined role and we need to do what we are supposed to do. But this is a bigger problem. This is way above us, so I wish I knew the answer. I do.

And that is it as far as discussing polarization. So taken as a whole it is a very coherent worldview. The Supreme Court can’t do much to reduce polarization because that’s not really their job. Their job is to interpret the law. The solution to great moral disagreements is that very often one side has to win, because there really can’t be any compromise. In short, it’s a nothingburger.

Ironically, she also buries the lede. The most interesting part of the discussion is the insight into the search for the person who leaked his draft of the Dobbs decision. We aren’t going to transcribe it but you can listen for yourself and we think this is a fair summary: He said you can’t name anyone unless you are sure, which suggests to us he might have his suspicions but he won’t be irresponsible enough to air them. Fair enough. He pretty much says that the investigation is at a standstill. And he also notes that they have not used the subpoena power—the Supreme Court and its marshal can’t do that. And that’s it.

By the way, you know who probably could subpoena phone records and the like? The FBI. So why haven’t they? Why haven’t they done everything they could to get to the bottom of this? And would they behave differently if Trump was president? So we might be seeing another example of the Biden Administration hanging the Supreme Court out to dry because they don’t like their rulings.

She also did this undercover nonsense to Justice Roberts:

2/ Chief Justice Roberts denies that America is a Christian nation. pic.twitter.com/hb3iFa5Jnv

— Lauren Windsor (@lawindsor) June 10, 2024

But that is even more of a nothingburger. The problem with discussing whether or not America is a Christian nation, is, well … what does that even mean?

Does it mean that America is a country chock full of Christians? That’s undeniably true and has been more true the further back we go in time.

Does it mean that America is a country founded by people guided by Christian values? That is also true and its obvious to anyone who knows about our legal history. Even the First Amendment’s religious clauses were defended on the ground that it is un-Christian to suppress freedom of religion. But a great deal of our law is inherited from the common law of England which was explicitly Christian in origin. The courts would literally cite stories from the Bible as if they were precedent. And if you know about how federal courts can operate as Courts of Equity (not to be confused with the new socialist use of the term ‘equity’), then you might know that these institutions literally started as courts in the Church of England. Today, a court might say ‘do this or we will throw you in jail,’ while in England they used to say, ‘do this or we will sentence you to Hell.’ Our court system is and always has been tied up in Christian values.

Does being a Christian nation mean that everyone who isn’t a Christian has to convert? Obviously not. The First Amendment specifically prevents that outcome.

Does it mean that everyone who isn’t a Christian isn’t a real American? Of course not. Some of the best Americans we know aren’t Christian and the Fourteenth Amendment's citizenship clause doesn't have a religious test.

So, whether or not you think America is a ‘Christian nation’ really depends on what you think those words mean.

The other thing we think is odd is that Ms. Windsor apparently decided to basically burn a bridge for this nothingburger. We suspect she will never be allowed back at this dinner again, and if she is, we are pretty sure every Conservative justice will know her face, and won’t let their guard down with her again—if they let their guard down in the first place. Why not wait to gather evidence until she has something of substance against any of them?

Well, the answer is might be because she is working on a documentary. From the Rolling Stone article, which describes her as a ‘a liberal documentary filmmaker:’

Windsor says she wants to give the public a ‘window into a body that is increasingly powerful and increasingly willing to overturn precedent.’ She has been working on a documentary, Gonzo for Democracy, which will chronicle the growth of Trumpism, election denial, and religious extremism.

Of course, this clucking about precedent is nonsense. The liberal justices on the Supreme Court are perfectly happy to overturn precedent that they don’t like and are never shy about it, and virtually every person can agree that certain precedents should be overturned—our disagreement with leftists is about which precedents that would be. And like many people who proclaim that they like Democracy, she thinks that nine unelected justices should have kept Roe v. Wade, thus having the Supreme Court decide abortion policy for this entire country. For those keeping score, Roe made America less democratic, not more, and Dobbs has made America more democratic. Alas, Windsor goes on:

‘One of the main drivers for me in this work is showing Americans that we are at a crossroads: Do we embrace the idea of secular democracy and uphold that tradition, ordo we start to transition into a Christian theocracy?’ she adds.

Except was America a theocracy in 1960 when states could regulate abortion and birth control without federal judicial interference, when there was no right to gay marriage or even gay sex? Heck, back then schools could lead students in prayer. Most rational people would say we were not a theocracy back then. And we weren’t.

And, certainly, Alito saying that he hoped America became voluntarily more Godly (which isn’t necessarily even a reference to Christanity) has nothing to do with theocracy.

The complaint seems to come from the belief that abortion bans can only be justified using Christian values. We have two responses to that. First, we know plenty of atheists who oppose abortion. Second, if we repealed every law that was justified based on faith, we would have to repeal the Voting Rights Act of 1965 and the Civil Rights Act of 1964. The Civil Rights Act was explicitly sold to the people by John F. Kennedy (Sr.) by citing the principle of doing onto others as you would have done to you, and Johnson quoted scripture when pushing for the Voting Rights Act. And do we have to mention how critical Reverend Martin Luther King, Jr. was in getting those laws passed? Union Soldiers sang ‘Glory, Glory, Hallelujah,’ as they marched in the Civil War, and the Civil War Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments—were fundamentally based on that evangelical belief that slavery and racial discrimination were wrong. We have already mentioned that the First Amendment was justified in explicitly Christian terms. And while the Declaration of Independence isn’t technically a law that can be repealed, it does say that we are endowed by our creators with certain inalienable rights, so we guess to be consistent, we’d have to renounce that, and rejoin Britain as a colony. ‘Sorry about that whole revolution thing, we don’t know what we were thinking!’

The reality is that America is, and has always been, a nation chock full of Christians. We have set aside some things in our Federal Constitution and the constitutions of different states to be outside the ordinary political processes. If you want to declare one religion the true religion of America, or to convict a guy without telling him the nature of the charges against him, you’re going to have to amend the Constitution, first. But to the extent that We the People make policy in this country through our ordinary votes, that policy will be driven by our morality. And that morality will inevitably be influenced by our faith—whatever each individual voter believes. Thus in a nation full of Christians, American policy will be heavily influenced by Christian values. It’s impossible to tell the entire American people what they can and can’t consider when they go to the ballot box and cast their votes. That’s not theocracy. That is constitutional representative democracy, when you give a largely Christian population freedom of religion. The only alternative would require the suppression of either democracy or freedom of religion.

Moving on, let’s look at reactions. We won’t bother with the many, many posts where they simply mischaracterize what Alito said. We’ll give you a few samples so you can see what we mean.

Oh nothing, just a US Supreme Court Justice aligning himself squarely with one political party, saying that his side has to WIN, that there’s no compromise with the left, and that his job as a judge is to spread Godliness. Utterly broken Court. https://t.co/ymlwITErvC

— Brian Tyler Cohen (@briantylercohen) June 10, 2024

Except he said none of that. Did you actually listen to his words?

There is a reason we have a separation between church and state.

If Justice Alito cannot accept that in his official capacity, then he should resign. https://t.co/UtSnhLMzvH

— Melanie D'Arrigo (@DarrigoMelanie) June 10, 2024

With what words did he suggest he would impose his religion on others. Saying you hope people voluntarily become more Godly doesn’t count.

Holy crap. Alito is basically an open Christian nationalist. If he admits it to a stranger at a reception, imagine what might be revealed if @DickDurbin held hearings to investigate thoroughly. https://t.co/1y4MCCRAKT

— Ezra Levin (@ezralevin) June 10, 2024

Except that isn’t Christian nationalism. That’s just being a Christian.

You guys, @lawindsor will be on @JoyAnnReid tonight to discuss! 🔥 https://t.co/2M2U7Ank7B

— Kathy Griffin (@kathygriffin) June 10, 2024

It’s a trifecta of stupid. Kathy Griffin, promoting Windsor on Reid’s dumb show.

On to more rational voices.

I listened to the full clip and genuinely heard nothing wrong or scandalous. If anything, Alito sounded more measured and fair than he tends to on the bench. What am I missing here? This feels like a nothing-burger and the scandal surrounding it only serves to prove his point. https://t.co/OGRgiBkUx9

— Lauren Shuler Marsh (@shuler_lauren) June 11, 2024

This is pure clickbait.

Nothing in this audio of Chief Justice Roberts and Justice Alito is remotely inappropriate.

What’s most notable is how both Roberts and Alito said — while being secretly recorded — that it’s not the job of the Court to make policy.

And even in a gotcha… https://t.co/VHbidc2eHB

— Carrie Severino (@JCNSeverino) June 10, 2024

The cut off text reads:

And even in a gotcha conversation with a bad faith actor, they reiterated the limitations of the judicial role.

Outside of that, the only other thing that stands out here is the timing of this release — right before the end of the term.

This is just a continuation of a desperate and coordinated campaign by the Left to delegitimize the Supreme Court because they don’t control it.

Expect the baseless smears to continue as long as a majority of the Court is faithful to the Constitution rather than to the Left’s political agenda.

Nothing Justice Alito says in this clip in any way damning.

In fact, if you fast forward to 4:30, he specifically says that the Supreme Court has a limited, defined role when it comes to public policy.

All it proved is that the guy is a Christian and understands his job. https://t.co/w51uPox8eo pic.twitter.com/0ho3YoDH61

— Greg Price (@greg_price11) June 11, 2024

The people who do things like this, and (even worse) the people that are running with this "story", are the very people that are most interested in exacerbating social fracture and mutual animosity. https://t.co/g0ByHC5azw

— Marc O. DeGirolami (@MarcODeGirolami) June 11, 2024

I don’t really understand what’s damning here https://t.co/sTgVJuH2ms pic.twitter.com/Lnt8h0N8BM

— Alex Griswold (@HashtagGriswold) June 10, 2024

Saying that this is "the biggest undercover story" of one's career says rather more about that career than about this story. If anything, Alito and Roberts both come out sounding downright reasonable. https://t.co/Bqm7lbZu8H pic.twitter.com/CtJLR9pr0m

— Connor Ewing (@ConnorMEwing) June 10, 2024

Evaluation: harsh, but true.

There's nothing explosive in this exchange, but what's clear is that Alito sees the distrust in the court as purely media manufactured, rather than based in legit concerns & conflicts. I also get the sense he knows exactly who the Dobbs leaker is. https://t.co/f0jHL8rcBW

— Jamesetta Williams 💕 (@jalexa1218) June 10, 2024

Except the concerns really are manufactured, which Jamesetta admitted in this case.

Windsor’s tweet, though brief, is a lie. Alito does not “admit” he cannot be impartial in legal cases and was not talking about one side or the other winning in the courts. He was asked a broader question.

— Ramesh Ponnuru (@RameshPonnuru) June 10, 2024

We read that as referring to the text she used to introduce the recording. And we are sad to say that this is a tactic that works, a lot. People get shown a video or audio file of something and rather than evaluate what they are seeing and hearing independently, they just default to believing whatever the text introducing it says. 

And that’s before you take account of other comments he made that undermine Windsor’s claim. https://t.co/bn1UmpvU3N

— Ramesh Ponnuru (@RameshPonnuru) June 10, 2024

That is an excellent post by ‘Bespoke Capital’ and we will highlight it more:

Despite hysteria, Alito made clear the court "can't do anything" about moral issues because it has a "very defined role" and suggests the solution is "way above us"--i.e. political branches and larger cultural change. https://t.co/t7LfwaunD6 pic.twitter.com/qahL4ncJxv

— Bespoke Capital (@monopoly4equal) June 10, 2024

And Ramesh also tells us where we have seen Windsor’s work before:

Reminded by @willrjost that Windsor was behind the Tiki Torchers for Youngkim scam (which backfired hilariously) https://t.co/z8lpMfkssI

— Ramesh Ponnuru (@RameshPonnuru) June 10, 2024

That whole episode was hilarious. We can imagine the committee meeting: 

'We should have a fake white supremacist gathering.'

'Who are we hiring?'

'These guys.' (Shows picture,)

'What? Those are just white guys! Can't we have some diversity in that group?'

'Of course. Silly me. Our fake white supremacists should be extremely diverse.'

I guess this is an improvement over the time that Lauren staged a neo-Nazi tiki torch rally but it’s about as exciting as a James O’Keefe exposé that goes nowhere. https://t.co/Qjs8ofeS3J

— Damin Toell (@damintoell) June 10, 2024

Conservative jurist reveals self to be conservative jurist

— Cheese For Everyone! (@CheeseForEvery1) June 10, 2024

Truthfully, not even that much, except in the sense that he admits that the court’s power is limited.

Also, undercover recordings are cool again!

— Andy Lancaster (@andylancaster) June 10, 2024

The very definition of a nothingburger.

— Rule 09 (@Rule093) June 10, 2024

Seriously. In fact, this guy has a funnier name for what Windsor did, journalistically:

Alito. Lauren Windsor. Secret recording. Undercover. None are trending. Unless there are more recordings more criminating than this, the only news is Geraldo Rivera owes @lawindsor a thank-you for replacing Al Capone's Safe as the biggest journalism bellyflop of all time. https://t.co/PIH7ejL1JR

— Benedict Hughes (@Spydermelon) June 10, 2024

For those who aren’t old enough to remember, Geraldo Rivera famously had a prime time special about opening Al Capone’s vault live on TV, only for there to turn out to be absolutely nothing interesting inside as far as anyone could tell. That was two hours of our lives we are never getting back and it rightfully hurt Geraldo’s career, though he has somewhat recovered.

So saying it is a bigger belly flop than that is quite an insult.