Much ado about nothing. Shakespeare might as well have been writing for Washington. Like the Bard’s comedy of gossip and intrigue, the latest fuss over Justice and Mrs. Alito offers little more than feigned outrage to most Americans.
But the media attack machine is doing what they accuse Samuel Alito of doing — undermining public confidence in the institutions of American democracy. In the absence of any actual evidence of impropriety, these attacks accuse others of that which they themselves are guilty.
Take the forced hysteria over the flags flown at the Alitos’ residences.
The story, of course, is a floor routine in mental gymnastics. The “breaking news” about an upside-down flag reported a brief incident that happened more than three years ago. The Washington Post investigated the story at the time and concluded that it did not warrant a story. When approached, the Alitos flatly denied any relation to the January 6 fiasco.
Without a single shred of evidence to contradict the Alitos’ version of events, the New York Times nevertheless ran stories insisting that the two were undeniably linked. Journalistic ethics require more than insinuation to impugn a leading public figure.
By the same token, the “provocative flag” flown at the Alitos’ beach house has also flown over San Fransisco’s city hall for the last 60 years, miraculously avoiding the scrupulous attention of the New York Times’s watchdog gumshoes. The unflagging fact-checkers at the Times had to rely on “ethics experts” to drum up the problematic connection to insurrection it claimed to reveal.
But the media’s ethical failings did not stop here. Self-avowed “relentless truth pirate” Lauren Windsor surreptitiously recorded Justice Alito and his wife at a private dinner. Under her own false flag, Windsor attempted to goad the Alitos into making incriminating statements about ideological adversaries and the mainstream media.
Yet, when listening to what Justice Alito had to say, I found myself surprised that the recording had made any waves at all.
In response to Windsor’s prompt that she didn’t think conservatives could “negotiate with the Left,” the Supreme Court justice replied with the hope of finding “a way of working, a way of living together peacefully.” Though he stated that “there are differences on fundamental things that really can’t be compromised,” it was merely a recognition that there are, in fact, debates in American public life over zero-sum issues.
As to the assertion that Justice Alito or his wife called for America to become a Christian theocracy, the only thing that came from the recording itself was a polite agreement with a stranger on the importance of “winning the moral argument.”
Every federal judge to have ever taken the bench has held views on American civic and political life. Every single American should.
Many pundits may ignore it, but Windsor also captured Justice Alito recognizing that “American citizens in general need to work … to try to heal this polarization because it’s very dangerous.” At the same time, he acknowledged that the court has a “very defined role” and the problems of civil society are “way above” the power of the court. His judicial humility admirably acknowledged the limits of his constitutional role, yet his civic compassion shows a thoughtful understanding of the deep rifts in our country. He should be lauded, not pilloried.
I clerked for Justice Alito. He is unfailingly kind, professional, thoughtful and conscientious of what is and is not his proper role. That was on display in the supposedly damning video. Likewise, Mrs. Alito is a generous and exuberant woman. When I read about these exchanges, I knew that the norms and trust with which they share their private lives had been breached.
The predictable result of these spurious accusations and ethically dubious “gotcha” journalism is the continuing erosion in public confidence in the judiciary. Americans are smart enough to realize that these stories are — and this is a technical legal term — “pure applesauce.”
Even still, the contrived hyperventilation has taken its toll. As a Washington Post op-ed trumpeted, the flag stories have “engulfed the nation’s highest court in criticism.” It’s little wonder that the court’s approval rating is at an all-time low. Confidence in the court has dropped to just 25 percent. And while talking heads and journalists might try to attribute that drop to the recent decisions of the court and the justices, they should look themselves in the mirror instead.
Jonathan Berry is managing partner of Boyden Gray PLLC. He served as a clerk for Justice Samuel Alito at the Supreme Court of the United States in October 2015.