What Exactly Did Justice Alito Say That Was Wrong?

By Marc O. DeGirolami in the NYT

Mr. DeGirolami is a law professor at the Catholic University of America who specializes in law and religion.

Justice Samuel Alito has been widely criticized this week for remarks he made to a self-described documentary filmmaker who on two occasions engaged him at social events, secretly taped him under false pretenses and released the recordings. What did he say that was wrong?

Nothing. None of his remarks was improper for a judge to make. Furthermore, he did not even say anything especially controversial — or at least nothing that would be controversial in a less polarized moment.

For those who have not heard the recording, here is what happened: Justice Alito assented to the filmmaker’s remark that the country is deeply polarized, and he said that given the depth of our disagreements over various issues and the inability to compromise on them, “one side or the other is going to win.” He stated that nevertheless “there can be a way of working, living together peacefully.”

He said that “American citizens in general need to work on this” — that is, polarization. But he said that solving polarization is not something that the Supreme Court can do, because “we have a very defined role, and we need to do what we’re supposed to do.” He added: “That is way above us.”

In perhaps the most discussed exchange, he assented to the filmmaker’s statement that it is important to win “the moral argument” and “return our country to a place of godliness.”

To start with the question of judicial ethics: Where was the justice’s error? He did not mention any pending case or litigation. He did not name any person or party. He did not discuss any specific political or moral matter. Most of the exchange consists of the filmmaker’s own goading remarks, followed by the justice’s vague and anodyne affirmations and replies. About what you might expect when cornered at a boring cocktail party.

Setting aside judicial ethics, I can think of two possible objections to what Justice Alito said: that he should not hold these views; or that he should not express them in public.

As to whether he should hold these views, I would suggest that they are not so extreme as to merit denunciation. On the contrary, they are reasonable, even commonplace.

Start with his remarks about polarization. Many people across the cultural divide contend that our political fractures involve intractably profound disagreements on which compromise is not possible. That does not mean that in all our disputes we are incapable of agreement (“there can be a way of working, living together peacefully”). But Justice Alito is hardly alone in the view that at least in the larger culture, many things are not amenable to compromise (“one side or the other is going to win”).

Likewise, many people in this country do believe in God and godliness. Many believe in the truth of our national motto, “In God We Trust.” They think religion contributes to a kinder and more moral society. And many of these people — including Justice Alito, to judge from his brief assent on the recording — also think that greater godliness might help the nation today. Americans who think God has something to teach us about decency and love and moral rectitude would be surprised to hear that treated as a shocking or extremist view.

Of course, those who do not believe in God may argue instead that godlessness or secularism is the surest path to becoming a better nation. Both are common, conventional and reasonable positions, however intense the disagreement between them.

As to whether Justice Alito should have expressed his views in public, one might claim that his assent to the filmmaker’s comments about a “return” to “godliness” was improper because it suggests that he would not treat secular parties fairly at the Supreme Court. But this argument assumes that a godly world has no room for peaceable tolerance for disagreement. And this is just what Justice Alito denied in suggesting that “living together peacefully” is a noble ambition toward which Americans should strive. Not only that: He was clear that the Supreme Court is not the place to resolve social and cultural fracture.

I recognize that most of this will not matter to many who are following this story. Those who dislike Justice Alito for other reasons will seize on what they can from this episode to condemn him. Indeed, this is presumably why the filmmaker went to such elaborate lengths to lie to him. Even so, nothing in Justice Alito’s comments merits the denunciation they are receiving, even if one disagrees with what he said. It is in the ginning up of the controversy that we see the real culture war.