The secret recording of conservative Justice Samuel Alito endorsing the idea that the country should return to a place of “godliness” has further plunged the Supreme Court into controversy, evoking outrage from Senate Democrats and forcing Republicans to play defense.
Senate Democrats are firing off new salvos of criticism at Alito — and at Chief Justice John Roberts for not reining in his conservative colleague — after he appeared to endorse the idea that the nation should embrace Christian principles and failed to distance himself from his wife’s outspoken hostility to a neighbor’s gay pride flag.
“Alito is an extremist who is out of touch with mainstream America. His rising power on the Supreme Court is a threat to our democracy,” Sen. Elizabeth Warren (D-Mass.) said.
Warren is one of many Democrats who think Alito is bringing a partisan political agenda to the bench, and they’re highlighting it whenever they can ahead of November’s election.
“I am most concerned about the appearance that Justice Alito has prejudged cases that will come before him. That is one of the biggest sins that a judge or justice can commit, and his willingness to align so publicly in the middle of a hotly contested political battle is deeply worrisome,” Warren said.
“It undermines whatever last shreds of credibility the Supreme Court might have had,” she said.
Alito has come under intense scrutiny from Democrats, liberal activist groups and the media since penning the majority opinion in Dobbs v. Jackson Women’s Health Organization, the case that overturned the right to abortion in 2022.
His draft opinion came under sharp criticism for citing 17th-century English jurists Sir Edward Coke and Sir Matthew Hale to claim a historical tradition of treating abortion as a crime.
Critics of the opinion argued it was driven as much by religious doctrine as legal reasoning, noting the Catholic backgrounds of the conservative justices who voted for it.
Then, speaking to a liberal advocacy journalist who posed as a Catholic conservative and secretly recorded her conversation with Alito at a recent Supreme Court gala, the justice appeared to embrace the idea of the country returning to more theological underpinnings and that compromise on some issues are impossible.
“One side or the other is going to win,” Alito told the journalist. “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.”
And when asked about the need to “return our country to place of godliness,” Alito replied, “I agree with you.”
Those comments sparked outrage from Democratic senators who have pressured Alito to recuse himself from cases related to former President Trump, including a pending case on whether he should be immune from prosecution for crimes related to his official acts as president.
Sen. Sheldon Whitehouse (D-R.I.), the chair of the Judiciary’s Federal Courts and Oversight Subcommittee, posted on the social platform X that “Alito answered like a movement activist. Movement activists have their role but it’s not on the Supreme Court.”
“Alito is becoming a loose cannon turned on the Court itself. He mocks ethics,” Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee, posted on X.
Blumenthal also criticized Roberts for not responding more assertively to Alito’s “behavior.”
“Really discouraging—in fact, outrageous—that Roberts is implicitly condoning Alito’s behavior, so demeaning to the Court & degrading to himself,” the senator posted.
Alito’s candid remarks follow reports that two flags linked to the Jan. 6, 2021, attack on the Capitol flew at his Virginia home and New Jersey beach house.
Alito says his wife was responsible for the incidents and he didn’t have anything to do with hoisting an upside-down American flag, a symbol of the “Stop the Steal” movement, at his home, or an “Appeal to Heaven flag,” which was also carried by Trump supporters on Jan. 6, at his vacation house.
Senate Judiciary Committee Chair Dick Durbin (D-Ill.) told reporters Tuesday that Democrats will try to advance Supreme Court ethics reform legislation on the Senate floor this week.
“We’re planning on making a move on the floor this week to move the ethics bill for the Supreme Court by unanimous consent,” he said.
The Supreme Court Ethics, Recusal and Transparency Act, which is sponsored by Whitehouse and Durbin, would require the Supreme Court to adopt a binding code of conduct and create a mechanism to investigate alleged violations of the code and other laws.
Durbin said he’s also open to adding language to the Supreme Court’s annual funding bill to require it to adopt an enforceable ethics code.
“I don’t rule out any tactic at this point. Our initial effort is to enact the law that passed the committee 11-10. We’re going to try to do that this week with a [unanimous consent request,]” he said.
The Judiciary Committee chair also hinted at other tactics to ramp up pressure on the conservative justices, citing their failure to properly disclose lavish gifts and hospitality from conservative donors.
“There may some new evidence that comes out,” he said.
The reports about Alito’s comments at the gala sent Senate Republicans scrambling to his defense.
They slammed the deception by the advocate journalist who posed as a Catholic conservative as the latest example of liberal harassment of conservative justices.
“It’s a pattern of harassment. These are people who want to destroy public confidence in all of our institutions and they are focused on the Supreme Court in particular,” said Sen. John Cornyn (R-Texas), a senior member of the Judiciary Committee.
Cornyn said the Democratic-sponsored Supreme Court ethics bill won’t go anywhere on the Senate floor this week.
It doesn’t have a single Republican co-sponsor.
Senate Republican Whip John Thune (S.D.) said “it’s more attempts by the left to try to delegitimize the court.”
Even Durbin acknowledged he had some misgivings about the journalist speaking with Alito under a false pretext, noting that conservatives have tried to target Democrats in the same way.
“I have mixed feelings commenting on this because of the nature of it. It was obviously a surreptitious recording that was not done with his knowledge, and we’ve seen that happen before where right-wingers did the same thing to Democrats,” he said.
The battle over future control of the Senate is becoming more focused on the Supreme Court itself, as November’s election will decide whether President Biden will have another chance to appoint a liberal to the high court or whether Trump will get a chance to expand the conservatives’ 6-3 majority.