What Exactly Did Justice Alito Say That Was Wrong?

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. Furthermore, he did not even say anything especially controversial — or at least nothing that would be controversial in a less polarized moment.

For those who have not heard the recording, here is what happened: Justice Alito assented to the filmmaker’s remark that the country is deeply polarized, and he said that given the depth of our disagreements over various issues and the inability to compromise on them, “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.”

In perhaps the most discussed exchange, he assented to the filmmaker’s statement that it is important to win “the moral argument” and “return our country to a place of godliness.”

To start with the question of judicial ethics: Where was the justice’s error? He did not mention any pending case or litigation. He did not name any person or party. He did not discuss any specific political or moral matter. Most of the exchange consists of the filmmaker’s own goading remarks, followed by the justice’s vague and anodyne affirmations and replies. About what you might expect when cornered at a boring cocktail party.