The Real Lesson of the SCOTUS Tapes

June is traditionally the last month of the Supreme Court’s annual term, and every year brings with it a flurry of major rulings on the most consequential cases of the day. This year, however, just as much attention is being paid to the justices’ extracurricular activities.

The latest episode in this saga comes from twin reports, by documentary filmmaker and activist Lauren Windsor and Rolling Stone magazine. Windsor surreptitiously recorded two of the court’s members, Chief Justice John Roberts and Justice Samuel Alito, at a recent Supreme Court Historical Society dinner. The society is one of the few events where members of the public can interact with the justices, albeit only through donating at least a few hundred dollars to the charity.

In the recordings, Windsor asked the two justices about their views on religious liberty, political polarization, and the court’s role in it all. Alito and Roberts gave answers that were uncharacteristically blunt, especially in the latter’s case. They represent a rare unguarded window into the justices’ thinking—for probably the last time.

To start with, the edited recordings do not reveal anything particularly dramatic. In her conversation with Alito, Windsor pressed him on the state of polarization in the country. “One side or the other is going to win,” he replied. “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.”

Windsor continued to press her point. “I think that the solution really is like winning the moral argument,” she went on to say. “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’s reply was supportive: “I agree with you.”

Rolling Stone, which exclusively published Windsor’s recordings, put an explosive title on the encounter: “Justice Alito Caught on Tape Discussing How Battle for America ‘Can’t Be Compromised.’” A casual reader might get the impression from that headline that Alito was secretly laying out culture-war battle plans to an ideological sympathizer at a private gala. In context, however, his comments seem more descriptive about the state of the country than prescriptive about what should be done about it.

In a later portion of the recording that was posted online by Windsor, Alito also expressly disclaims a role in the culture wars. When asked by Windsor how to “bridge that gap” between the two sides, Alito replied, “I wish I knew. I don’t know. I don’t think it’s something we can do,” referring to the court. After Windsor asked him more directly, he replied, “We have a very defined role, and we need to do what we’re supposed to do. But this is a bigger problem. This is way above us. I wish I knew the answer.”

Make no mistake that Alito is a culture warrior. He is not particularly quiet about his views. You can read his 2020 speech to the Federalist Society, where he aired a series of grievances against the court’s critics and ideological foes, mostly centered around religious liberty. Or his remarks two years later on religious liberty at a University of Notre Dame event in Rome, where he lamented the increasingly secular turn in Western countries.

“The problem that looms is not just indifference to religion, it’s not just ignorance about religion, there’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors,” he said in his 2022 speech in Rome. “The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection.”

The more interesting portion of the recordings, at least to me, came from Windsor’s interactions with Roberts. The chief justice is a somewhat enigmatic figure, even by Supreme Court standards. He hasn’t written a book and infrequently gives speeches. When he speaks, it is only to the most anodyne of audiences, like law schools and non-ideological legal organizations, and only about the most neutral of subjects. He almost never writes concurring or dissenting opinions of his own. I can’t remember the last on-record interview that he gave to a news outlet that wasn’t C-SPAN.

So when someone gets Roberts to speak extemporaneously about the court’s work and place in society, it stands out. Windsor’s questions for the chief justice hit upon similar themes to her questions for Alito, perhaps in anticipation of the side-by-side contrast. “It’s a very tumultuous time in the country, and I’m just curious, like from your perspective on the court, how do we start to repair the polarization?” she asked. Roberts immediately challenged the premise of her question.

“You know, the first thing I think is to tell me when the non-tumultuous time has been here,” he replied. “I mean, you’re looking at the court, what the court was doing in the 1960s, what the court was doing during the New Deal, what the court was doing, you know, after Dred Scott and all this. It’s kind of a regular thing. People think it’s so different and special. It’s been pretty tumultuous for a long time.” He referenced how split the country was during the Vietnam War.

Roberts’s claim that this era is more or less normal when it comes to American political stability explains a lot about his approach to Trump v. Anderson, the disqualification clause case that the court decided earlier this term. While I don’t doubt that Roberts abhorred January 6 itself, if he also sees it as just the latest chapter in the long American history of political violence, it may explain why he apparently thought the cure of disqualification was excessive for the disease of insurrection.

Another intriguing moment came when Windsor brought up religious liberty. “I 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,” she began, before Roberts interjected. “I don’t know if that’s true,” he replied. “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.”

The Roberts court is renowned for its friendliness to religious freedom claims. A study by legal scholars two years ago found that the court was substantially more likely to side with religious organizations than under Roberts’s immediate three predecessors. In those cases, the study reported, the court sided with such plaintiffs a whopping 83 percent of the time.

Roberts himself has been a semi-consistent vote alongside the rest of the court’s conservatives in those cases. His comments shed new light on why and when he might diverge from them. For many on the American right, America’s identity as a Christian nation is self-evident. When Alito speaks about religious freedom in his speeches, he does not disclaim it for other faiths. But it is also clear that he has one particular denomination in mind.

We’ve seen hints of this divide in some of the court’s opinions, as well. During the Covid-19 pandemic, Roberts sided with state public health officials on multiple occasions on whether they could restrict the size of religious gatherings to reduce the virus’s spread. Those decisions drew furious dissents from Alito and the other conservative justices, who lamented that churches were being treated like other public gathering places.

In the 2021 case Fulton v. City of Philadelphia, the court unanimously sided with a Catholic foster-care agency that declined to work with same-sex couples on religious freedom grounds. Roberts wrote the majority opinion where he held that the city’s restrictions unfairly targeted religious beliefs. Alito, Thomas, and Gorsuch again parted ways in a pointed concurring opinion. They argued that the court should have gone further and reversed a major precedent that limits free exercise clause claims against otherwise neutral laws and policies that affect religious practices.

The dissent characterized its frustration in almost personal terms. “After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito wrote, referring to Roberts’s majority opinion. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.”

This divide is also reflected in how Roberts disclaimed a culture-war approach to the court’s work. “You don’t think there’s like a role for the court in, like, guiding us toward a more moral path?” Windsor asked. “No, I think the role of the court is deciding the cases,” Roberts immediately replied. “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 for lawyers.” Though Alito made a similar disclaimer, Roberts’s version is more emphatic and lacks the tinge of regret in his colleague’s answer.

When we speak about Supreme Court justices, we often describe them with the labels of “conservative” and “liberal.” These terms are generally useful but can often smooth over crucial differences within each camp. Roberts and Alito illustrated, via these off-the-cuff remarks, how subtle differences in perspective can lead to substantial differences in outcomes.

Given how these recordings were gathered and published, I wouldn’t hold out hope for similarly unguarded moments from the justices in the future.