It’s so rare these days for people in positions of power to put the country before themselves, so when it happens, we should ruminate on the moment.
The secret recordings of Justice Samuel Alito and Chief Justice John Roberts, who spoke with a progressive activist posing as a religious conservative at a Supreme Court Historical Society event, offer quite the contrast in how each sees his role on the court. And while many are focused on Alito, not enough focus is being given to the chief justice’s comments.
As a refresher, here’s the exchange between Roberts and the woman who approached both justices, Lauren Windsor. (NBC News hasn’t been able to confirm what edits Windsor made to the recordings.)
Windsor:“You don’t think there’s a role for the court in guiding us toward a more moral path?”
Roberts:“No, I think the role for the court is deciding the cases. If I start — would you want me to be in charge of guiding us toward a more moral path? That’s for the people we elect. That’s not the lawyers.”
Windsor:“Well, I guess I just believe that the founders were godly — were Christians. And I think that we live in a Christian nation and that our Supreme Court should be guiding us in that path.”
Roberts:“Yeah, I don’t know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say maybe not. And it’s not our job to do that. It’s our job to decide the cases as best we can. It’s a much more modest job than I think people realize.”
What’s remarkable about Roberts’ back-and-forth with Windsor is that he seems to see his job the same way in 2024 as he told the country during his 2005 confirmation hearing to be chief justice. Then, he said:
“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.
“But it is a limited role. Nobody ever went to a ball game to see the umpire. ... I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented.
“I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
Again, the Roberts of 2005 and the Roberts of 2024 sound remarkably similar.
Now, let’s do Alito. Here’s the excerpt of his exchange with Windsor:
Windsor:“About the polarization in this country, about how do we repair that rift — considering everything that’s been going on in the past year, as a Catholic and as someone who really cherishes my faith, I don’t know that we can negotiate with the left in the way that, like, needs to happen for the polarization to end. I think that it’s a matter of, like, winning.”
Alito:“I think you’re probably right. One side or the other, one side or the other is going to win. I don’t know — I mean, 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. They really can’t be compromised. So it’s not like you’re going to split the difference.”
Windsor:“That’s what I’m saying. I think that the solution really is like winning the moral argument. Like people in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.”
Alito:“I agree with you. I agree with you.”
And now, here’s Alito from his early 2006 confirmation hearing:
“When I became a judge, I stopped being a practicing attorney, and that was the big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda. A judge can’t have any preferred outcome in any particular case. And a judge certainly doesn’t have a client.
“The judge’s only obligation — and it’s a solemn obligation — is to the rule of law, and what that means is that in every single case, the judge has to do what the law requires. Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered. Good judges are always open to the possibility of changing their minds based on the next brief that they read or the next argument that is made by an attorney who is appearing before them or a comment that is made by a colleague during the conference on the case, when the judges privately discuss the case.”
Whatever you think of Alito as a justice or as a conservative, it does seem as if he’s more comfortable expressing his ideology (in this case, expressing agreement with his undercover questioner) and using his position to push his views, not necessarily having the open mind he claimed to have during his confirmation hearing.
The real test of character in any position of authority is whether you are the same person when the spotlights are on as when the spotlights are off. Roberts showed us that at his core, he takes his job and the responsibilities that come with them quite seriously, no matter when he’s potentially tested. He’s meeting the moment.
You don’t have to agree with every opinion Roberts authors or signs on to, but it is nice to know that he’s self-aware about his role and truly devoted to doing the job he applied for: upholding and interpreting the Constitution to the best of his abilities.
What I’ll be interested in watching over the next few days and weeks is how liberals and conservatives respond not to Alito’s comments but to Roberts’. Is there universal respect for how Roberts sees the role of the Supreme Court, or do activists get frustrated that Roberts refuses to virtue-signal to either the left or the right?
We’ve been living in an era of ideological and cultural polarization for a generation now. Voters under 40 really haven’t known any other kind of political environment. Many of our institutions have crumbled in the face of political pressure, and many political leaders have compromised or rationalized their inability to put the country before their own political survival by claiming any replacement would be worse than they are.
The Supreme Court has been no different from society as a whole, and some members of the court have fallen into the view that, in the words of Alito, “one side or the other is going to win.”
And both Alito and Justice Clarence Thomas have turned the other way (or perhaps sent subtle messages of virtue-signaling) when their spouses chose public political activism, even at the risk of compromising the reputation of the institution that gave their partners standing.
In response, not all justices have stayed silent. While she hasn’t used as politically inflammatory rhetoric, Justice Sonia Sotomayor has let her views be known outside her dissents — most likely to the disappointment of the chief justice who would prefer all of the justices publicly act like actual umpires (at least umpires not named Ángel Hernández, but I digress). Sotomayor told an audience at the Radcliffe Institute for Advanced Study at Harvard University: “There are days that I’ve come to my office after an announcement of a case and closed my door and cried. There have been those days. And there are likely to be more.”
Roberts has also avoided being used as a political prop (by either the right or the left) to single out justices whom one set of partisans simply doesn’t like. It has most likely allowed Roberts to keep his credibility internally with as many of the eight other justices as possible.
Roberts strikes me as someone who tries to model the behavior he expects other justices to abide by; he doesn’t strike me as someone who needs to bring attention to his behavior and lecture those who don’t model it. Considering that Roberts has somehow created somewhat of a center on the court (or a center that leans right with Justices Brett Kavanaugh and Amy Coney Barrett), it is a testament to his goal of trying to keep the Supreme Court out of the political fray when possible, knowing that if its credibility gets closer to that of either the executive or the legislative branch, court rulings could be simply dismissed as rank partisanship.
One can see why some on the left have gotten religion on the idea of term limits for justices. It’s worth noting, though, that while Alito’s behavior is a good argument for term limits, Roberts’ behavior is a good affirmation for the lifetime appointment idea.
Perhaps a compromise is a justice has to get re-confirmed every 18 years (essentially every generation). The intention of the founders was to insulate the judicial branch from short-term politics as best they could, and 18 years in one position was essentially a “lifetime” on the actuarial tables of the 18th and 19th centuries. Of course, any attempt to impose term limits or a “re-confirmation” process after 18 years would have to amend the Constitution. But the 18-year “re-confirmation” deadline might serve as a de facto “term limit,” as many a justice might decide it’s better to retire than go through another confirmation process.
Ultimately,we learned very little new about Alitointhese recordings,but we learned something about Roberts. The recordingshould serve as reassurance that the person running the country’s third branch of government has the long view about the republic that the founders hoped people wouldadoptonce they accepted the weight of their responsibilities.
I share the optimism that Roberts seemed to express — that this era of polarization isn’t as unique as many want to believe, which means it’s something we can get through because we’ve done it before.
From the recording: “I have been here almost 20 years. There have been quieter times. The Civil War — we did that. During Vietnam, people were getting killed. … This is all right. I mean, it’s not all right. But it’s not like it’s dramatically different.”
That having been said, we are being tested — every member of the larger political class, from those in office to those in the news media and, most important, the citizenry itself. Roberts is passing the test; Alito is failing it. Ultimately, it’s up the voters, not any member of the Supreme Court.
Trendspotting alert: Youth social media regulation
It appears New York will be the first state to prevent tech companies from using algorithms to decide how to arrange the feeds minors see on their favorite social media apps.
Late last week (hat tip: Pluribus News), New York lawmakers approved legislation that would require social media platforms to display all feeds to minors chronologically. Ultimately, the goal is to prevent the social media companies from using data from minors to target them algorithmically and entice them into scrolling and scrolling.
The bill passed the Assembly 146-1 — not close. If this idea is as effective as lawmakers hope it is, expect similar legislation to start making its way through a lot of states and perhaps Congress.
This is another step in treating social media the way we treated cigarettes. We started by drawing a line on when minors could partake, and it’ll be the cause of trying to protect minors that will ultimately bring some government oversight into how social media companies can manipulate our information ecosystem.
Caitlin Clark as political prop
One of the more predictable but disappointing aspects of the rise of Caitlin Clark’s popularity and the attention she has helped bring to women’s sports is how so many professional provocateurs are trying to use her rookie year in the WNBA to pursue their own political agendas.
It’s also a reminder of why daytime sports cable TV has become nearly as unwatchable (and as predictable) as partisan political posturing. I used to keep one of the two all-sports channels on as my background noise on the occasional weekday day off. Not anymore (all podcasts for me now).
The talk radio-ization of both cable news and sports news has really perverted what folks even view as “news” or “journalism” anymore. I’m sorry to see the sports programmers decide that the best way to grab a piece of the attention economy is to hire folks and incentivize them to say the most controversial thing they can think up, even if they personally don’t really believe what they are saying. (But it gets clicks! Have you seen the YouTube views?)
We’ve seen the rot this style of discourse has done to politics, so why on Earth sports programmers want to play into this is beyond me. Why make a sporting event, one of the things that used to unite folks of different persuasions, a test of virtue-signaling?
Luckily, the players are the adults in this scenario. Both Caitlin Clark and Angel Reese, two of the more prominent WNBA players whom provocateurs have used to try to create a controversy, have gone out of their way to avoid it. Perhaps these sports programmers could learn a thing or two from these younger players.
