A liberal activist’s secret recordings of two Supreme Court justices has engulfed the nation’s highest court into political controversy, while also raising questions about the ethics in how the conversations were obtained.
The activist, Lauren Windsor, approached conservative Justice Samuel Alito and Chief Justice John Roberts while wearing a concealed recording device at the Supreme Court Historical Society gala earlier this month.
Windsor attended as a member under her own name, but posed as a Catholic conservative with the explicit goal of eliciting unfiltered, controversial comments from those in attendance.
Windsor has argued going undercover was the only way to expose what she and many liberals have said is the court’s unacceptable right-wing tilt and the personal bitterness of its conservatives.
But critics contend Windsor crossed a line by misrepresenting herself to obtain the recordings, and warn her move might have further opened a Pandora’s box of political dirty tricks in the midst of an increasingly contentious election year.
“I worry about the cascading effect that something like this can have,” said William Howell, a professor at the University of Chicago’s Harris School of Public Policy. “It invites people with whom she disagrees with ideologically to do much the same and point to her actions as justification for doing it.”
On one recording, Windsor, who has a history of using surreptitious methods to catch conservatives saying embarrassing things, captured Alito saying of the left and right, “One side or the other is going to win.”
Windsor also talked to the justice’s wife, Martha-Ann Alito, who is heard on the recording promising revenge on the people who have raised controversy surrounding her and her husband.
The audio’s publication sparked instant outrage from court watchers and the historical society itself.
“We condemn the surreptitious recording of Justices at the event, which is inconsistent with the entire spirit of the evening,” the organization said in a statement to The Hill. “Attendees are advised that discussion of current cases, cases decided by this Court, or a Justice’s jurisprudence is strictly prohibited and may result in forfeiture of membership in the Society.”
Windsor did not respond to a request for comment from The Hill this week but in various media interviews has expressed no regret for her reporting methods.
The activist insists that recording the justices secretly was the only way she would have been able to shine a light on their personal beliefs.
“To people who want to pearl-clutch about this, please tell me how we’re going to get answers when the Supreme Court has been shrouded in secrecy and really refusing any degree of accountability whatsoever,” she said Tuesday on CNN.
During a subsequent appearance on cable news channel NewsNation, Windsor pushed back on suggestions she baited Alito into making controversial comments.
“I don’t think that I was baiting him,” she insisted. “I think that it coaxed him into a position that either was already held or that he came to that over the past year.”
Windsor’s expose comes amid a whirlwind time for the conservative-majority court, which has seen its objectivity and political independence questioned, particularly by those on the political left.
ProPublica has reported extensively in recent months on alleged ethics violations by members of the court while just last month, the Alitos were embroiled in a controversy over various flags flying over their properties.
Outside observers to the latest scandal say the increased scrutiny of conservatives on the court in recent months undermines Windsor’s argument that her recordings were revelatory enough to justify the means she used.
“We didn’t learn very much we didn’t already know from this,” said Susan Keith, a professor of media studies at Rutgers University. “There was nothing in what Alito said to her that you wouldn’t already expect to hear from him publicly.”
Covert operations and secret recordings with political agendas in mind are nothing new in modern election cycles and semiregular partisan publicity fights.
The right-wing group Project Veritas was well known during the years of the Trump administration for using hidden cameras and secret recording devices to obtain audio and video of public health officials, journalists and other perceived enemies of the right making unflattering remarks or espousing personal opinions on matters of public debate.
“This sort of technique [on both sides] of sneaking up on people and secretly recording them is just not fair,” Keith said. “I just don’t think it’s necessary in most situations.”
Windsor has, at the same time, shown deft media strategy in rolling out the audio clips she captured at the June 3 gala.
On Wednesday, as Windsor was making the rounds on cable news, Rolling Stone published new audio of Alito, provided to the outlet by the activist, on which he is heard bashing ProPublica’s reporting on the court, saying “they don’t like our decisions.”
And while Windsor is receiving outsized attention for her clandestine recordings, some observers note her work should be viewed differently from mainstream journalists covering the court regularly.
“Every time a major mainstream news outlet or news organization promotes one of her stories, they’re essentially paying her money and sending millions of people to her website,” said John Watson, a professor of journalism at American University.
“In journalism using deception to get information is inherently unethical. However, if the information is absolutely important for the public to have and there’s no other way to get it … I have yet to see anything she has done that reaches that threshold.”