Speaking freely at a glitzy Supreme Court Historical Society event earlier this month, Justice Samuel Alito pointed out that there are “fundamental things that really can’t be compromised” in society, and speculated that “one side or the other is going to win.” The comments were recorded by a documentarian who had attended the events and surreptitiously recorded the justices as they increasingly find themselves under the microscope for tossing precedent overboard and embarking on ideologically rigid right-wing path.
At the same event, Chief Justice John Roberts showed how justices are supposed to approach these questions, telling the documentarian that the court should not be a moral compass for the country, nor trying to put us on the path towards being a Christian nation.
Alito is right about one thing — one side or the other indeed will win. He may think of this as a battle between the political right and left, with the latter characterized as an out-of-control force wrecking the country. But that’s not really what’s happening here; it’s a contest between a conception of the court and the broader government as a tool to protect rights and small-l liberal commitments, or one to impose a reactionary agenda against all that.
We cannot have a society that simultaneously respects values like self-determination, protection of civil rights and access to health care and abortion, while being run by minority factions hell-bent on imposing their personal religious values on everyone. The vision of strict and strictly enforced social and economic hierarchy based on some imagined bygone conservative principles is fundamentally incompatible with the principles that this country holds as its high ideals.
The trouble is Alito, who holds an office that is meant to safeguard the latter, is fighting on the opposite side. Yet it’s considered impolite to point this out, despite the fact that the justice has been all but explicit about it, with his public rhetoric and with Jan. 6 and Christian nationalist flags (dubiously blamed entirely on his wife). Now here he is, being even clearer in agreeing that the country must return to some sort of “godliness.”
This is just one instance that happened to be recorded, but there’s no doubt Alito and his fellow ultra-conservative justices are toeing this line elsewhere, like the privately-funded retreats put on by right-wing legal groups and the trips organized by Clarence Thomas’ benefactor Harlan Crow. They’re generally fine being so open about it because experience has shown they will face little accountability or consequences.
That should change. The Constitution created the three branches of government as co-equal, keeping one another in check. It did not put the Supreme Court above everything else, untouchable by either electoral will or scrutiny from other branches.
The Congress should force the justices to clarify some of their conflicts of interest and outside entanglements, under oath. No more polite invitations for justices to decline, no more justices reluctantly making disclosures only after reporters and oversight groups dig up million-dollar gifts they’ve received. Use the levers of government to rein the justices in, while we still have a liberal democracy to defend.
