- A documentary filmmaker secretly recorded Supreme Court Justices Alito and Roberts at a recent event.
- The tape has led to criticism of the judges, but one legal expert told BI that the criticism could backfire.
- The courts are facing serious problems and the tapes could force judges to be more secretive.
Rolling Stone magazine reported early Monday that a documentary filmmaker posing as a Catholic conservative had secretly recorded a conversation between Supreme Court Justice John Roberts and Chief Justice Samuel Alito at a special charity party.
Some critics questioned the ethics of Lauren Windsor's secret recording, while others highlighted the stark contrast between Justice Alito's comments and Chief Justice Roberts' response to the provocation of the secret investigation.
But the recording, which comes at a time when the Supreme Court is plagued by a series of scandals and plummeting public trust, may not bring about any new transparency and may actually do the opposite – make the court even more secretive, one legal scholar told Business Insider.
What was on the secret recordings?
The New York Times appeared to confirm the authenticity of the recording on Monday evening, in which Alito, who recently came under fire for flying an upside-down American flag outside his home in 2021, appeared to endorse the idea that the United States should return to being a “godly” country, but cast doubt on the possibility of a compromise between liberals and conservatives in the future.
“One of us is going to win,” Alito told Windsor at the event, according to both media outlets. “There may be ways to work together, ways to peacefully coexist, but it's going to be difficult because we disagree on fundamental points and we can't compromise.”
Windsor, who has a history of documenting left-wing movements such as Occupy Wall Street and targeting conservatives with her website Project Veritas Exposed, continued to persuade Justice Alito that she believed the solution was to “win the moral argument,” according to the audio.
“People who believe in God in this country must continue to fight to restore this country to sanctity,” she can be heard saying.
“I agree, I feel the same way,” Alito agreed.
Roberts, by contrast, was more sober in his remarks, as he pushed back against Windsor's argument that the court should provide moral guidance to the nation.
“You want me to be responsible for putting the country on a more moral path?” the Chief Justice reportedly said. “That's the job of the people we elect, not the lawyers.”
Windsor told the Times he believed making the secret recordings was the only way to get answers to his questions.
“I wanted to put their story on the record,” she told the outlet, “so recording them was the only way to have evidence of what happened, otherwise my word would just be at odds with theirs.”
Why recording can backfire
Jonathan Adler, a Supreme Court expert and law professor at Case Western Reserve University, told Business Insider that Windsor's recordings don't offer any new insights into how the justices interpret the law — instead, he said, they're an unhelpful distraction from important issues facing the Supreme Court.
“This would mean fewer visits by justices to organizations like the Supreme Court Historical Society and similar organizations,” Adler said. “It would encourage justices to become even more isolated and sequestered from the public, the legal profession and so on. It's not clear why that's good for the country, the Supreme Court or anything else.”
Adler said much of what the judge recorded could be gleaned from public speeches and past rulings and was far more thoughtful and considered than spontaneous comments from a stranger hoping to provoke a reaction.
Instead, he said, the tapes are now a distraction from serious cases before the court on issues such as the scope of jurisdiction, the nature of presidential immunity, parental rights, gender identity and the climate crisis.
“I think it would be much more fruitful to spend time helping people unpack and understand these questions and issues, because that's what matters,” Adler said. “So it doesn't really mean much to us whether Justice Alito thinks the political or tribal divisions in this country are going to be resolved anytime soon.”
Representatives for the Supreme Court did not immediately respond to Business Insider's request for comment.
