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Secret audio raises new questions about Supreme Court Justice's impartiality

MARY LOUISE KELLY, HOST:

We begin this hour with a story of judicial and journalistic ethics. A woman who describes herself as a documentarian and liberal activist secretly recorded audio of two Supreme Court justices at an exclusive gala. Lauren Windsor released the edited audio on X and shared it with Rolling Stone.

ARI SHAPIRO, HOST:

The two justices were Samuel Alito and Chief Justice John Roberts. In the edited audio, Alito can be heard agreeing that the nation needs to return to a place of godliness.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: 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.

SHAPIRO: There are differences on fundamental things that really can't be compromised, he said. In contrast, Chief Justice John Roberts pushed back against Windsor, saying, I don't know that we live in a Christian nation, and the role for the court is deciding the cases. Of course, this raises questions about the content of the remarks and the way they were obtained. NPR media correspondent David Folkenflik is here to dig into this. Hi, David.

DAVID FOLKENFLIK, BYLINE: Hey, Ari.

SHAPIRO: Before we get more deeply into what was said, give us some context of who Lauren Windsor is, the woman who surreptitiously recorded the justices.

FOLKENFLIK: Sure. She's a Democratic activist and filmmaker. She has, in the past, taped other Republican figures at public events and some in more private settings. She, you know, has worked more conventionally in Democratic politics, to be sure, but right now she's operating in a kind of - well, shall I say, a bit of a cowboy mode. It's almost as though she sees herself as an antidote to James O'Keefe, the conservative, really right-wing provocateur who used undercover videos. He often went after sort of ancillary figures to try to discredit larger institutions or liberal figures. In her case, she's really gone after folks who are really at the top, in this case, of the federal government and also, in some ways, the conservative establishment, if you think about these two justices.

SHAPIRO: And so at this Supreme Court gala, where guests paid hundreds of dollars for tickets, Windsor secretly recorded the remarks, and they were edited before they were released. Tell us about some of the most significant things Alito said on tape.

FOLKENFLIK: You know, Alito really kind of embraced the idea that there was a cultural war happening in the United States, that there were two very different visions of what America should look like and does look like. And in this case, he said, one side needs to prevail. There's no way of reconciling that cultural clash. You know, Windsor contrasted that with remarks he made last year where he said it really wasn't the place of the Supreme Court to resolve such conflict and kind of didn't embrace the framing or the conceit. This year he seemed to go all in. And let's remember these remarks were just made about eight days ago.

SHAPIRO: And it comes as there is a national debate over judicial ethics that's focused specifically on Justice Alito and flags flown over his house associated with the January 6 insurrectionists. But when Windsor asked similar questions to Chief Justice Roberts, he answered them very differently. Tell us about what he said.

FOLKENFLIK: Clearly an institutionalist. That is, this wasn't a private setting in the sense of somebody's home, but he didn't have the understanding that he was about to be broadcast. And he essentially said that the court and the society is trying to work out its issues in a way that you'd recognize from civics class, right, Ari? You know, she presented herself - Lauren Windsor - not as a Democratic or liberal activist but as a Christian, somebody who wanted the country to return to a more godly way of life and suggested that she really embraced a very conservative notion of the nation.

And Roberts essentially waved her off. He said, listen. I don't look at the nation as a Christian nation. He said, my Jewish and Muslim friends wouldn't identify it that way, and that's not how I look at this. He did not embrace the idea of somehow an us and them - a divisive black and white look at how the country should operate.

SHAPIRO: There were also some pretty pointed things that were said on tape by Justice Alito's wife, Martha-Ann Alito. She is a private citizen. She is not a Supreme Court justice, but will you just tell us what she said?

FOLKENFLIK: Sure. She - a little bit like her husband, Justice Alito - expressed anger at the media for how they've been depicted in recent days and over time as well. But she also said - essentially, she said, I'm a German. You don't come after a German. It seemed like an ominous if not entirely unpacked idea of vengeance would be visited upon her critics. She seemed to suggest that she might go after critics once Alito stepped down from the bench. One could have some sympathy for her circumstances. Again, she was not told that she was being recorded in this, but she also did not sound like somebody who had much patience or tolerance for those who had been critical of her or her very prominent husband.

SHAPIRO: Does the fact that this audio was edited mean people should discount it altogether, take it with a grain of salt or what?

FOLKENFLIK: You know, I talked to Lauren Windsor earlier today a little bit about what she had done. And what she indicated was that there really had not been much meaningfully edited from this whatsoever. I think people can take that with whatever grain of salt they want. I think it's useful for people over time to just post entire audio. It wouldn't surprise me if that ultimately happened. James O'Keefe, for example, who used to post full audio or video after he had posted excerpts - often there were great disparities between what he had done, including but not limited to instances when he did it more than a decade ago involving NPR.

Now, look. She went about it in a way that NPR and The New York Times, The Wall Street Journal, major American news outlets would just not - would do. It involves deception, right? She presented herself as a conservative figure, although she did give her real name. And at the same time, there is a value one can concede to understanding how these incredibly prominent and influential people offer.

But I think more credibility comes when you post the full transcripts, the full audio. And I think people can hold back full judgment, but this is so consistent with each of the two justices' public remarks. And they have not taken any issue with what they've been claimed to have presented as saying - that it's hard to discount what was being presented here.

SHAPIRO: NPR's David Folkenflik. Thank you.

FOLKENFLIK: You bet. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

David Folkenflik
[Copyright 2024 NPR]
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.