Newly released audio recordings of Justice Samuel Alito appear to show him speaking candidly about the limits of the Supreme Court’s investigation into the leak of his draft majority opinion in the 2022 case, which ended the federal constitutional right to abortion.
And in a separate recording, the judge’s wife, Martha-Ann Alito, said she was unimpressed by a recent controversy over flag displays at the couple’s homes in suburban Virginia and coastal New Jersey.
Liberal activist and documentary maker Lauren Windsor posted the audio on X Monday and shared it with Rolling Stone. During the exchanges, Windsor posed as a conservative hostile to abortion rights and supportive of the Alitos. She also expressed outrage over POLITICO’s May 2022 disclosure of the court’s upcoming opinion in Dobbs v. Jackson Women’s Health Organization and regretted the court’s failure to publicly identify the person responsible.
“It’s hard,” Alito told Windsor during an exchange at a Supreme Court Historical Society event in June 2023. “You know, you can’t name someone until you know for sure, and we don’t have the power to change things to do. that would be necessary to try to find out, to determine exactly [who did it]. And even then we might not be able to do it. We do not have the power to subpoena people to testify, to subpoena files, phone records or other similar items. We do not have that authority.”
The day after POLITICO’s report on the draft opinion, Chief Justice John Roberts confirmed its authenticity and ordered an investigation, which was conducted by the court’s marshal, Gail Curley.
In January 2023, the Supreme Court announced that the investigation was “unable by the preponderance of evidence to identify a person responsible.” However, the investigation revealed numerous shortcomings in the physical and electronic handling of sensitive information at the court.
“We’re not a law enforcement agency, you know,” Alito told Windsor. “People have certain rights to privacy, so law enforcement can issue subpoenas, get search warrants and things like that, but we can’t do that. Our marshal did as much as she could, but it was limited.”
Earlier in the same conversation last year, Alito said the partisan divide in the country was troubling and blamed the press for the increasingly negative perception of the court.
When asked how the country could become less polarized, Alito replied: “I wish I knew. Don’t know. It’s easy to blame the media, but I blame them because they do nothing but criticize us. And so they’ve really eroded confidence in the court. … American citizens in general need to work on this to heal this polarization because it is very dangerous.
Altio said he doubted the court’s ability to bring the country together.
“I don’t think this is something we can do,” he said. “We have a very clear role and we have to do what we have to do. But this is a bigger problem. This is way beyond us.”
Spokespeople for the Supreme Court did not immediately respond to requests for comment on the recordings.
Last week, at another Supreme Court Historical Society dinner, Windsor spoke to Alito again and said negotiating with the “left” may be futile. The conservative judge seemed to agree, but then qualified his answer.
“I think you’re probably right: one side or the other is going to win. I mean, there can be a way of working, a way of living together peacefully, right? It is difficult because there are disagreements on fundamental issues that cannot be compromised.”
When Windsor told Alito she believed people must fight “to return our country to a place of godliness,” the judge responded, “I agree with you.” I agree with you.”
In a lengthy conversation with Martha-Ann Alito at the same dinner, Windsor asked about the backlash the couple received after the New York Times reported on two flags linked to Donald Trump’s attempt to overturn the 2020 election . The judge said in a letter to Congress that he is not “fond of flying flags” and that his wife put them up.
In Windsor’s recording, the judge’s wife sounded unrepentant. She described her critics as “feminazis” and threatened defamation lawsuits against the press.
“There is a five-year statute of limitations for defamation,” Alito said. “Do not get mad. She also expressed deep resentment over the newspaper’s criticism of her fashion choices “in the beginning” and said her husband’s attempts to curb her penchant for flying provocative flags have largely fallen short .
“He never has control over me,” she told Windsor.
Martha-Ann Alito said she has deferred to her husband in recent days by not trying to counter an LGBTQ pride flag flying near their home for now. “I want a Sacred Heart of Jesus flag because I have to look across the lagoon at the pride flag for the next month,” she said. “I said, ‘If you’re free from this nonsense, I’ll bring it up.’”
Windsor also recorded Roberts at the same fundraising event at the courthouse last week, but he refused to take the bait when she said she believed the Supreme Court “should guide” America down a path as a “Christian nation.”
“I don’t know if we live in a Christian nation,” the chief justice said. “I know many Jewish and Muslim friends who would say, maybe not. It’s not our job to do that. It is our job to assess things as best we can.”
Roberts also rejected the popular perception that the country is living in an era of extreme polarization.
“I have been here almost twenty years. There have been quieter times,” the Chief Justice said. “The Civil War – we did that. People were murdered during Vietnam. … This is OK. I mean, it’s not okay, but it’s not like it’s dramatically different.
