The secret recording of Alito reveals something — but not about Alito

Justice Antonin Scalia recounted that after he joined the majority in ruling that burning an American flag was a form of protected speech in a landmark 1989 case, his wife Maureen hummed “You’re a Grand Old Flag” while making breakfast the next morning. So, the possibility that a Supreme Court justice might see flag-related issues differently than a spouse is nothing new.

That story, however, was not treated as a subject fit for breathtaking news coverage, as the most recent kerfuffle involving Justice Samuel Alito has been.

The latest controversy involves a filmmaker who posed as a conservative Catholic to record private conversations with Alito and his wife. Interestingly, one of these conversations confirms Alito’s account of the prior “crisis” — that he had not flown an upside-down America flag intended to express his opinions.

But cooler heads have not prevailed. Instead, gossip and eavesdropping masquerading as news have been treated in some media outlets as a story worthy of sustained interest.

The recordings offer the public little of substance. Perhaps Alito — who, like other justices, is religious — believes the nation could benefit from greater godliness among its citizens. Perhaps, though, he was just polite to a guest at a reception who badgered him with leading questions. The one valuable thing from this story is that it clearly confirms the wisdom of Samuel Coleridge: Be cautious of party crashers.

There is, however, something more important and legitimately troubling about the nature of the criticisms being directed at some of the justices — particularly at Alito, because he authored the majority opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and the constitutional right to abortion.

The disturbing reality is that there are activists, media outlets and even elected officials who are actively working to undermine confidence in the Supreme Court as a strategy to influence the court’s deliberations in order to achieve their preferred policy ends. Deceiving a justice regarding your identity to pepper them with questions designed to produce incriminating answers to record and publish online is one such strategy. This willingness to “burn it all down” for ideological gain is problematic.

In our system of government, the justices have the critical responsibility to protect the integrity of the Constitution and the laws enacted under its authority. They do this by trying to faithfully apply the law — which they did not make — to controversies brought to them. They publish their opinions about appropriate legal standards and applications in specific cases, giving everyone the chance to assess, and to approve or criticize their conclusions.

Since they do not initiate the laws, the justices are not intended to be policymakers subject to the concerns of representativeness or the popular will, as the other branches are. This means that justices sometimes make decisions they would not agree with if they were legislators. Scalia, for instance, was open in his disdain for the practice of flag burning; but in his role as judge, he felt obliged to protect the practice.

When a Supreme Court decision is wrong, as some certainly have been, citizens should feel free to criticize its reasoning and seek reconsideration in future cases. The other branches also have constitutionally prescribed ways of seeking a correction of a bad ruling, through amendments to the Constitution, nominations and confirmations of justices, or even — perhaps in a rare and extreme case — through impeachment.

What we see happening now is different. Opponents of decisions instead cast aspersions on justices in the absence of any substantive legal cause for concern. Perhaps they hope that the justices will back away from faithfully executing their judicial duty or will temper their opinions to fit current sensibilities out of fear of harassment and rhetorical abuse. That would be a tragedy.

That result appears unlikely, though. What is more likely is that a drumbeat of purported ethics concerns or claims of a crisis of legitimacy will erode the civic institution of an independent judiciary — one of the foundations of justice in America — by convincing people that the sheer number of criticisms (no matter how irrelevant or petty) signal that something actually is wrong.

If these forces are successful in harming the Supreme Court’s reputation, there is little reason to believe they will be able to reverse that effect if justices begin ruling differently. If confidence in the court is undermined in this way, the integrity of our constitutional and legal system may be the true loss.

William C. Duncan, J.D., is the constitutional law and religious freedom fellow for Sutherland Institute, an independent nonprofit public policy think tank in Salt Lake City.