When it comes to the Supreme Court, liberals are clericalists. They believe that they ought to exercise authority through it because they have the right morals, the right credentials, and the right mission, granted to them by “the right side of History” — their substitute for Providence.
Thus, their reaction to the consolidation of the Court to the right after President Trump appointed three justices has not been to attack its jurisprudence — judicial philosophy to them is a mere expedient — but to attack the ethics of Justice Clarence Thomas, and now to attack the religion of Justice Samuel Alito. It’s in this way that liberals hope to attack the legitimacy of the Court, to undermine its authority and potentially subject it to constitutional revision.
The latest was an undercover hit job, in which a progressive activist, Lauren Windsor, posed as an enthusiastic Catholic conservative and surreptitiously recorded her conversations with Justices Alito and Roberts, and even with Mrs. Alito.
All the breathless coverage focused on Justice Alito’s supposedly controversial statement that he agreed with Windsor’s apparent piety. Referring to the culture-war issues that divide the Court and the nation, Alito told Windsor, “One side or the other is going to win. . . . 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.” As a statement about the issues at hand, this is perfectly accurate and widely agreed upon. Windsor replied that people who believe in God have to keep fighting for what we believe. Alito said, with cocktail-party manners, “I agree with you, I agree with you,”
Windsor tried to bait Alito into saying something incriminating. She opined, “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 —”
Alito responded, “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.”
“But the Court can’t do anything to —” Windsor replied.
Alito finished the conversation: “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.”
Except for the Wall Street Journal, none of the mainstream reports included Alito’s perfectly apt description of the Court’s limited role in these debates, instead merely leaving readers to guess as to how far Alito’s commitment to promoting godliness goes. As a matter of constitutional design, Alito is exactly right: In America, the people rule through their institutions. As for what’s above the pay grade of a Supreme Court justice, that includes God’s job of dispensing the divine grace that would make the country more godly.
A second recording, of Justice Alito and his wife, rather humorously confirmed exactly what Alito has said about the flag controversies ginned up by the New York Times. All it revealed is that Mrs. Alito is a passionate Catholic who indeed loves to display messages through flags and that Mr. Alito, for the sake of appearances, tries to limit this.
All that emerges from this story is that Justice Alito knows his constitutional role and carries it out with grace under tremendous fire. It’s not a surprise that his critics, even by their own terms, are willing to cheat to take him down a peg.