Here’s what Judge Alito said that was wrong…

Vince Rizzo
5 min readJun 13, 2024

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In a previous diary, I wrote about the Alito mini-scandal precipitated by a Rolling Stone reporter Lauren Windsor (nee Supreme Court Historical Society event in June 2024. Windsor is described as a political consultant and advocacy journalist on her Wikipedia page. As noted in diaries Lady Libertine) secretly recorded an interview with both the judge and his wife. The occasion was the here, she was an early contributor to sites like Daily Kos and began her activism in the Occupy Wall Street movement.

In a recent NYTimes guest essay, Marc DeGirolami, a law professor at the Catholic University Columbus School of Law, impertinently asks What Exactly Did Justice Alito Say That Was Wrong?”in his conversation with Windsor. With editorial sleight of pen, the writer chooses to assert what he hopes his readers will never investigate:

“Justice Samuel Alito has been widely criticized this week for remarks he made to a self-described documentary filmmaker who on two occasions engaged him at social events, secretly taped him under false pretenses and released the recordings. What did he say that was wrong?

Nothing. None of his remarks was improper for a judge to make.”

- NYTimes, June 13, 2024

DeGirolami then goes on to cite remarks about Alito’s agreement with Windsor’s suggestion that our nation needed a return to “godliness.” The thrust of his argument was that the religious references and Alito’s pained assertion that partisanship was at the center of our problems and that while he bemoans our inability to get along, it was neither the court’s job nor its concern:

…”one side or the other is going to win.” He stated that nevertheless “there can be a way of working, living together peacefully.”

He said that “American citizens in general need to work on this” — that is, polarization. But he said that solving polarization is not something that the Supreme Court can do, because “we have a very defined role, and we need to do what we’re supposed to do.” He added: “That is way above us.”

- NYTImes, Marc O. DeGirolami

What the guest editorialist omits amid his Alito apologies is what Alito did say that was disturbing. So here goes. In any discussion of the justice’s remarks, it is pure malfeasance on the lawyer’s part to leave out these thoughts which followed immediately after the discussion on polarization:

“I wish I knew. I don’t know. It’s easy to blame the media, but I do blame them because they do nothing but criticize us. And so they have really eroded trust in the court. … American citizens in general need to work on this to heal this polarization because it’s very dangerous.”

Blaming the media for “criticizing us” is a statement that in context contradicts the press’s essential role in reporting on the activities of our public officials. The First Amendment protects five rights that in Windsor’s reporting suggests the court has reason to be criticized:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

As the DeGirolami must know the freedom of the press to criticizewas among the very first protections James Madison sought against governmental overreach:

James Madison wrote the amendments as a solution to limit government power and protect individual liberties through the Constitution. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the First Amendment.

- The Bill of Rights Institute

The Alitos of the world can bloviate all they want about “religion and a return to “godliness,” they simply can not prescribe it. DeGirolami neglects to entertain recent decisions and assertions by members of the Court that have impacted the five freedoms in the First Amendment. Rights accorded to women, journalists, political parties, and citizens in general. In addition, the word “peacefully” inserted noticeably in Madison’s handiwork, eliminates any thoughtful consideration of the events of January 6 and those who perpetrated a riotous insurrection committed to upending the Constitution and its Bill of Rights. The emphasis of the original amendments to guard against oppression by the majority, protecting individual and minority rights is not for the courts to renegotiate.

As a professor of law at a Catholic university, the freedoms Alito casts aspersions on include those that protect the religious convictions Alito and DeGirolami are free to hold. The “godliness’” Windsor’s recording uncovered that is so odious that it demands criticism has little to do with religion which the author uses as a scapegoat in his hollow defense. Rather it is the trappings of infallibility and the belief that they are above critical comment that suggests that Alito and some of his cohorts exhibit a delusional “god-complex” — a narcissism that colors their own impartiality and ability to arbitrate public matters before the court based upon the rule of law.

DeGirolami has provided cover for all those too lazy to investigate what his writing chooses to ignore. As a law professor, he joins the other thinly disguised legal partisans for whom neither the forest nor the trees matter.

The current court majority has decided to change America because its freedoms impinge on their prejudices against women, immigrants, and the poor. Their belief that ours is a Christian nation flies in the face of our founders’ assertions otherwise. The Supreme Court errs when it acts as a legislature of with final jurisdiction. It interprets and should not “make” law. DeGirolami has proven what poet and activist James Baldwin observed in a different America and at a different time. His words now seem even more appropriate- more timely:

It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have.

- James Baldwin

Baldwin lived in a time when another court with different justices proclaimed some of us to be separate… but equal in a ruling that certified Jim Crow and made black Americans less than equal in the eyes of the court. In DeGirolami’s parsing of Alito’s words that would eliminate the grotesque, we are about to allow many of us to be separate not equal under the law- a ferocious injustice indeed.

Originally published at https://www.dailykos.com on June 13, 2024.

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Vince Rizzo

Former president of the International Association of Laboratory Schools (IALS) and a founder of a charter school based on MI theory.