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Justice Alito is unfit to sit on the SCOTUS because “his impartiality might reasonably be questioned”

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Supreme Court Justice Samuel Alito said, “I agree with you, I agree with you,” after “liberal documentary filmmaker” Lauren Windsor said to him: “People in this country who believe in God have got to keep fighting for that — to return our country to a place of godliness.”

The exchange occurred at the annual Supreme Court Historical Society dinner last week (tickets cost $500). According to Rolling Stone, the event is “known to right-wing activists as an opportunity to buttonhole Supreme Court justices.” What Alito did not know was that Windsor was recording the conversation.

However, “Windsor attended the dinner as a dues-paying member of the society under her real name, along with a colleague. She asked questions of the justice as though she were a religious conservative.”

The recording, which was provided exclusively to Rolling Stone, captures Windsor approaching Alito at the event and reminding him that they spoke at the same function the year before, when she asked him a question about political polarization. In the intervening year, she tells the justice, her views on the matter had changed. “I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” Windsor says. “I think that it’s a matter of, like, winning.”

“I think you’re probably right,” Alito replies. “On 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 are going to split the difference.”

As former federal prosecutor Joyce Vance states bluntly:

[N]o judge, and certainly no justice, can express rank political views and hope to maintain the public’s confidence. Every judge knows the right way to respond when questions like the ones Windsor posed arise, and the fact that Alito responded as he did suggests a level of confidence that he has gotten away with this for a long time and will continue to do so, almost as though he believes that he’s above the law. Justice Alito is not worried that he’s going to be called out for carrying his Christian standard into the courtroom.

The legal standard for recusal under federal law provides that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Of course, some Supreme Court Justices, Alito among them, don’t treat that as binding. But this has now reached a full boil, and if Justice Alito will not take the situation seriously, his brothers and sisters on the Court must take steps to ensure he does. The Court, as we’ve noted repeatedly, doesn’t have armies to enforce its orders. The public obeys them because they have confidence in the Court. If that confidence is irrevocably shaken, and it will be if Justice Alito is permitted to continue on this path, we end up in a very dark place.

And what did Chief Justice John Roberts say when Windsor asked him similar questions? The opposite of Alito.

In an audio recording of that exchange, Roberts takes issue with Windsor’s assertion that the nation is unusually polarized, historically, citing the high tensions of the Vietnam War era, for example. He also insists that the Supreme Court’s current role is not exceptional. “The idea that the court is in the middle of a lot of tumultuous stuff going on is nothing new,” Roberts says…

“Would you want me to be in charge of putting the nation on a more moral path… That’s for people we elect. That’s not for lawyers.”

Predictably, critics attack Windsor’s methods. Her rebuttal:

We have a court that has refused to submit to any accountability whatsoever — they are shrouded in secrecy… I don’t know how, other than going undercover, I would have been able to get answers to these questions.

Anyone who is not a religious nationalist — people of the Islamic and Jewish faiths, for example, as Roberts mentioned — cannot trust Alito to rule “like an umpire.”

Moreover, Alito has demonstrated elsewhere that he puts his thumb on the scale. Again, from Vance:

“An empirical analysis of the Court’s ‘standing’ decisions … found that Alito rules in favor of conservative litigants 100% of the time & against liberal litigants in every single case.”

Alito must, at a minimum, recuse himself from matters all cases dealing with Donald Trump and religious conservatism. In order to repair the image of the Court, he should step down. Now.

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