In the New York Times today, Catholic University of America law professor Marc DeGirolami has published an insightful essay suggesting, I think, a fair-minded and reasonable way for progressives to think about the so-called “scandal” involving a recording of Justice Samuel Alito made by a left-wing activist filmmaker falsely claiming to be a conservative Catholic. Here’s an excerpt from the article:
One might claim that his assent to the filmmaker’s comments about a ‘return’ to ‘godliness’ was improper because it suggests that he would not treat secular parties fairly at the Supreme Court. But this argument assumes that a godly world has no room for peaceable tolerance for disagreement. And this is just what Justice Alito denied in suggesting that ‘living together peacefully’ is a noble ambition toward which Americans should strive. Not only that: He was clear that the Supreme Court is not the place to resolve social and cultural fracture.
I recognize that most of this will not matter to many who are following this story. Those who dislike Justice Alito for other reasons will seize on what they can from this episode to condemn him. Indeed, this is presumably why the filmmaker went to such elaborate lengths to lie to him. Even so, nothing in Justice Alito’s comments merits the denunciation they are receiving, even if one disagrees with what he said. It is in the ginning up of the controversy that we see the real culture war.
As DeGirolami notes, Alito’s disinterested affirmation of the activist’s deceitful comment in favor of restoring “godliness” has absolutely no bearing on his ability to impartially consider and adjudicate cases involving non-religious (or, to use the activist’s language, “ungodly”) parties. Additionally, it does not logically follow that being generally supportive of a societal return to “godliness” necessarily entails that one favors the use of immoral or unconstitutional means to achieve that end.
After all, one can retain particular views regarding religion and morality, or even favor an increased role for religion and religiously associated political arguments in the public square, while accepting as a matter of descriptive reality what the late political theorist John Rawls identified as the fact of reasonable pluralism — the notion that modern societies like ours are defined by an ingrained plurality of competing conceptions of human flourishing, conditions which will inevitably exist in societies where the free exercise of human reason is permitted and encouraged.
Progressives and conservatives — despite any differing normative views on religion, morality, and human flourishing — should be able to agree on the fact of reasonable pluralism as descriptively true, and recognize that Alito’s tepid comments to the lying activist cannot be charitably or reasonably construed as evidence that his judicial impartiality is compromised or that he favors legislating from the bench.
Supreme Court justices, just like you or me, are entitled to their own views about hotly contested questions, such as the place of religion and religious values in our country’s political life. But there would be no real scandal if, for example, Justice Sonia Sotomayor was caught on tape suggesting that she personally believed religion has too large an influence in American politics. The scandal would come if she declared that she would act outside of her constitutional role as a judge in order to advance those personal beliefs — something that Alito in the recording explicitly rejected.