Unshackled by ethics, protected by partisans: The Supreme Court is out of control 

Supreme Court Justice Samuel Alito seems like a badly behaved child who likes the attention they get even when they act out. How else can we explain Alito’s ethical transgressions, naked displays of partisanship, and willingness to ignore public outcries over his conduct? 

Last week brought more evidence of his bad boy behavior — and of the lengths to which Republicans will go to keep their allies on the Supreme Court from scrutiny. 

On June 10, liberal activist and filmmaker Lauren Windsor released tape recordings of comments Alito made to her when she posed as a conservative Catholic activist at two meetings of the Supreme Court Historical Society. At one, in June 2023, Windsor pretended to be an abortion critic and an admirer of Justice Alito and his wife. 

She drew them into a candid conversation by expressing outrage over the May 2022 leak of the draft opinion in Dobbs v. Jackson Health Organization. Instead of withholding comment about the inner workings of the court, Alito said “It’s hard. You know, you can’t name somebody unless you know for sure, and we don’t have the power to do the things that would be necessary to try to figure out, nail down exactly [who did it].” 

He lamented the fact that “We’re not a law enforcement agency, you know. … People have certain rights to privacy, so law enforcement agencies can issue subpoenas, get search warrants, all that sort of thing, but we can’t do that. Our marshal did as much as she could do, but that was limited.” 

These comments were pretty innocent, if ill-advised. But then Windsor returned to the annual Supreme Court Historical Society dinner and again got Alito to speak. This time the conversation focused on the country’s ongoing culture wars, with Windsor telling Alito that she thought any negotiation with “the left” may be pointless.  

And again, instead of refusing to get drawn into a political discussion, Justice Alito responded. “I think you’re probably right: One side or the other is going to win. I mean there can be a way of working, a way of living together peacefully, right? It’s difficult because there are differences on fundamental things that can’t be compromised.” 

When Windsor told Alito that she believed that people need to fight “to return our country to a place of godliness,” the justice replied: “I agree with you. I agree with you.” 

While some on the right want to downplay the significance of what Alito said to Windsor, The New York Times is right that what Alito said went “beyond the questions of bias and influence at the nation’s highest court.” His comments reveal his sympathy for the position taken by Christain nationalists “that American democracy needs to be grounded in Christian values and guarded against the rise of secular culture.” 

Of course, it is by now hardly a secret that Alito and some of his colleagues on the court traffic in movement activism.  

As a report in Vox puts it: “Alito has a long history of making partisan statements. ... A little more than a week after Democratic President Barack Obama won his 2012 reelection race, Alito spoke to the conservative Federalist Society, where, quoting from one of his least favorite law professors, he warned that America is caught in a ‘moment of utmost sterility, darkest night, most extreme peril.’” 

And as CNN reports, Alito has been especially vocal in talking about religion. “Over the years, Alito has demonstrated an us-versus-them attitude on religion, as well as ideological and political matters. He has declared religion under siege and cast himself on the side of the persecuted.” He has demonstrated “contempt … for his critics and for people outside of his political tribe.” 

Reacting to last week’s revelations about Alito, Sen. Sheldon Whitehouse (D-R.I.) observed, “Alito answered like a movement activist. Movement activists have their role but it’s not on the Supreme Court.” 

Though some of Whitehouse’s Republican colleagues criticized the justice when it was revealed an upside-down American flag had been flying outside his home following the election loss of former President Donald Trump, in this instance they rallied to his defense and attacked those who dared raise a question about Alito’s conduct. 

Senate Republican Whip John Thune (S.D.), for example, dismissed the latest evidence of Alito’s questionable behavior as just “more attempts by the left to try to delegitimize the court.” 

He was joined in his attack on Alito’s critics by Sen. John Cornyn (R-Texas), a senior member of the Judiciary Committee, who called Windsor’s revelations part of “a pattern of harassment.” Then Coryn upped the ante and claimed that “These are people who want to destroy public confidence in all of our institutions and they are focused on the Supreme Court in particular.”  

Thus, it was hardly a surprise when Coryn’s Republican Judiciary Committee colleagues torpedoed proposed legislation last week that would have required the Supreme Court to adopt a code of conduct. The Supreme Court Ethics, Recusal, and Transparency Act would also have created “a mechanism to investigate alleged violations of the code and other laws and improve the disclosure of potential conflicts of interest.” 

In the Washington of today, even calls for ethics and transparency in our governmental institutions trigger partisan reflexes.  

This time Republican Sen. Lindsey Graham (S.C.) led the charge, joined by Coryn and Sens. John Kennedy (R-La.) and Mike Lee (R-Utah). “Let’s be clear,” Graham argued, “this is not about improving the court. This is about undermining the court. … This would be an overreach, undermine the court’s ability to operate effectively.” 

He complained that “there are provisions in this bill that should bother anybody that cares about an independent judiciary,” saying that the bill would create an investigative panel of lower court judges to “preside over their bosses” on the Supreme Court. 

Fair enough. But where are the Republican proposals to address the ethics scandals that have contributed to the growing crisis of confidence in our nation’s highest court? 

Crickets.  

Part of the reason for their silence is that the Supreme Court still garners support from the Republican base, where 68 percent view the justices favorably. They also have what they want on the court: partisan judges delivering decisions that entrench Republican positions that could not prevail in the political process.  

And in Justice Alito, their own special bad boy, they have what journalist Ian Millhiser calls “a judge with no theory of the Constitution, and no insight into how judges should read ambiguous laws, beyond his driving belief that his team should always win.”  

They have a valuable partisan warrior and lightning rod who is a “perfect fit” for what judging has become in the age of Donald Trump. 

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College.