Justice Alito and Bias

Terry Schwadron
5 min readJun 12, 2024

Terry H. Schwadron

June 12, 2024

How obvious does Supreme Court Justice Samuel Alito have to get about his biases in serving as a judge before someone in charge stands up and says it cannot go on?

Although the means of using a secret recording is ethically sketchy, the recordings of Alito, his wife, Martha-Ann, and Chief Justice John G. Roberts Jr. by a woman filmmaker posing as a conservative Christian show Alito gladly accepts his role to be as a moral warrior to push for his personal biases as law.

Alito already has made clear through dissembling excuses for flying flag symbols at his homes promoting the Jan. 6, 2021, insurrection and white, Christian nationalist goals that he sees himself beyond the reach of criticism, whether from the nation’s Judicial Council, the chief justice, Democratic senators or you and me.

In conversation at an annual social occasion about preservation of court history, the documentary filmmaker, Lauren Windsor, engaged Alito in the current political divide. “One side or the other is going to win,” Justice Alito told her. “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.” He then agreed that his role was to “keep fighting for that, to return our country to a place of godliness.”

In his own secret recording, Chief Justice Roberts said the justices have no role in guiding morality, just in settling cases before the court. “Would you want me to be in charge of putting the nation on a more moral path?” the chief justice said to her. “That’s for people we elect. That’s not for lawyers.”

There was a recording of Mrs. Alito as well, promising to fly more flags because she is outraged by the gay pride flag she can see from her home.

At the outset here, there is something less than kosher about posers misrepresenting themselves to get journalistic-like access to news sources. Windsor’s excuse is that Alito and Supreme Court justices refuse to meet up with questioners in public, and that she played the uninvited role because she could. The end, she suggested, justifies the mean means of posting the results widely on social media.

Alito and Bias

However the quotes emerged, we now have them. We know for sure that any case involving issues on which there are Left-Right divides or involving socially moral concerns from abortion to contraception to race issues,

Justice Alito is arriving with a serious lean from the get-go for holdings that sound a lot like what proponents of a white, Christian America say they want.

Of course, this would not surprise anyone following the questions he asks or the opinions he writes for the court. Alito is a consistent vote for an extremely conservative view of a wide range of issues.

But having it all out in the open is a dare to senators to do something about it.

Just last week, Alito responded in a letter to Democratic Senators Dick Durbin and Sheldon Whitehouse, who had argued that public displays of sympathy for Donald Trump’s attempts to overturn the 2020 election merited, at the very least, Alito’s recusal from other Trump-related Supreme Court cases, several of which the justices will decide sometime in the next few weeks.

Alito’s defenders, Republicans most often, say Democrats would not raise the bias issue involving a liberal justice, and, remarkably, House Republicans are demanding that Attorney General Merrick Garland and such figures as Manhattan District Attorney Allan Bragg and Judge Juan Merchan from Trump’s trial be held to answer for daring to prosecute Trump.

Here’s the editor of BallsandStrikes.org, which covers the court: Alito’s letter “consists of three pages of lazy and embarrassing lies, all of which are less remarkable for their substantive claims than for their sheer audaciousness. What the letter makes clear is that Alito understands that, in the American legal system as it exists today, no one can stop him from using his power however he wants, to benefit whomever he likes the most.”

Court Already in Trouble

This year, the Supremes repeatedly have found themselves in hot ethical water — tepid water, at least — for taking cash gifts from wealthy friends whose industries may have business before the court. The biggest spotlight has focused on Clarence Thomas over millions of dollars in gifts and trips, and on the participation of his wife, Ginny, in Stop the Steal activities while her husband has continued to sit in judgment of cases emerging from those activities.

The Senate Democrats barely control the Judiciary Committee, and it is unclear whether they have the votes or staying power to take on an ethically recalcitrant court. Chief Justice Roberts has made clear that for the committee to subpoena Alito would violate some unstated balance of power between judicial branches, even though Congress sets the salaries and lifetime terms of the justices.

The court’s ethics code and insistence on single justices to decide on their own suitability to sit on specific cases in which they may have a lean have emerged as open issues.

At minimum, Judiciary Committee members ought to be able to ask for a truthful explanation from Alito. The Senate may want to take up sanctions or term limits for justices or an enforceable ethics code.

The presidential election has yet to really focus on the idea that the next president could name up to three justices to replace the oldest or health-affected justices. Donald Trump has made clear that he will name more justices in the mold of Alito as served up as nominees by the secretive, Right-leaning Federalist Society. Joe Biden’s single appointment was limited to a search among Black women, in hopes to adding to the court’s diversity, much to the ridicule of Senate Republicans.

Beyond Alito and personal ethics, the real issue here is Trust. The entire concept of our legal system is based on fairness, not on having a Supreme Court acting as a super-legislature. Having bias going into cases means that the oath that a justice takes increasingly is worth less than what the words say.