Embattled U.S. Supreme Court Justice Samuel Alito was thrust into the middle of yet another controversy Monday when Rolling Stone published remarkably candid audio of him talking about the battle between America’s ideological poles—citing “fundamental” differences between the two sides that he says “can’t be compromised.”
“It’s not like you are going to split the difference,” he said of his beliefs on the increasingly factional battle between Democrats and Republicans.
He made the remarks at the Supreme Court Historical Society’s annual dinner on June 3, part of a secretly recorded conversation with Lauren Windsor, a documentary filmmaker and reporter who approached the justice “as though she were a religious conservative” after joining the organization under her real name, she wrote for Rolling Stone.
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The conversation underscores how little effort Alito makes in private to frame his role on the Supreme Court—long held as a nonpartisan institution concerned only with the law—as a neutral arbiter of legal doctrine, instead openly endorsing partisan ideas and frameworks.
At one point, he endorsed the need to “return our country to a place of godliness” in response to a pointed comment from Windsor.
“I agree with you, I agree with you,” he said in a more than six-minute-long clip Windsor published on X.
“I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” Windsor said at another point in the conversation. “I think that it’s a matter of, like, winning.”
“I think you’re probably right,” Alito replied. “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.”
The leaked audio comes on the heels of a pair of controversies courted by Alito thanks to Jan. 6-linked flags spotted outside two of his homes.
The first instance came in the contentious few days before President Joe Biden’s inauguration, during which time neighbors saw an upside-down American flag flying outside his Virginia home. The New York Times first revealed the flag’s existence.
The symbol—meant to evoke a country in distress—was favored at the time by advocates of Trump’s “Stop the Steal” efforts to subvert the results of the 2020 election.
Alito, however, denied any involvement in the flying of the flag, telling the Times that his wife had put it up in response to a vicious neighborhood dispute over politics.
He would use the same excuse just weeks later when The New York Times revealed that another Jan. 6-linked flag was flown in 2023 outside the justice’s New Jersey beach home. This time it was the “Appeal to Heaven” flag, a Revolutionary War-era relic and favorite of Christian nationalists that came to serve as another symbol of support for Donald Trump’s “Stop the Steal” campaign.
The revelations prompted a national outcry and a call from many Democrats in Congress for the justice to recuse himself from any cases relating to Donald Trump and the Jan. 6 Capitol riot.
Those calls seemingly have fizzled out, however, with neither Biden nor congressional Democrats willing to take action on the issue.
“The central pushback should come from the legislative branch, and not the executive branch,” Anthony Coley, a former senior official in Biden’s DOJ, told Politico of the situation last month.
Senate Judiciary Chair Dick Durbin (D-IL) likewise expressed doubt that any hearings would be called to investigate the issue. “I don’t think that’s going to achieve anything,” he told Politico.
In a pair of letters to Congress, Alito remained defiant and refused to recuse himself from any cases as a result of the flag controversies, instead placing the blame squarely on his wife.
“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” Alito wrote in one of the letters.
“My wife is fond of flying flags. I am not,” he added. “She makes her own decisions, and I have always respected her right to do so.”
