Samuel and Martha-Ann Alito Just Showed Us Who They Are…And It’s On Tape

It was quite a double gotcha moment.

Self-described liberal documentarian and activist journalist Lauren Windsor is known for soliciting damning admissions from right-wing figures. In the past, she’s gone undercover at GOP events to nail Mike Pence, Jim Jordan and Glenn Youngkin in some doozies. 

Last week, she succeeded once again, this time with both Justice Samuel Alito and his wife, Martha-Ann Alito.

And hoo boy.

Windsor attended a black tie event for the Supreme Court Historical Society, a Who’s Who gathering of U.S. conservatives. She is a dues paying member and bought herself a $500 ticket to attend and have access to the Alitos. Just as she did when she spoke with Justice Alito at the event last year, Windsor pretended to be a concerned Catholic so that Alito would have his guard down and, she hoped, speak more candidly to her.

By the way, major props to Windsor for playing the long game. Justice Alito might have remembered speaking to Windsor at the event, after she reminded him, and her deep subterfuge would have added to her credibility.

Windsor was able to coax some astonishing admissions from both members of the couple. While there already has been wide coverage of these statements, for context I’ll briefly walk through what was said, going one Alito at a time. There’s been far less coverage of precisely why these statements are troubling and are grounds not only for Justice Alito’s recusal from political cases, but also for his immediate resignation or his impeachment, should he refuse to resign.

A right-wing, partisan extremist, further exposed

Windsor attended this year’s Supreme Court Historical Society with a vital context that was non-existent when she attended a year before. Last month, a scandal erupted over two different insurrectiony flags that the Alitos had flown at their properties: an upside-down U.S. flag hoisted at their home in Alexandria, Virginia, just 11 days after the violent attack on the Capitol; and a Christian Nationalist “appeal to heaven” flag flown above their beachfront property in New Jersey in the summer of 2023, at a time when Justice Alito was deciding whether to hear January 6 related cases.

Together, the two flags call into question whether Alito respects the rule of law and democratic governance, and it certainly gives the appearance of extreme and unresolvable bias when it comes to January 6 cases.

Windsor’s line of questioning, while posing as a social conservative and delivered with impressive authenticity, delved into the political divide, a topic she had broached with him the year before. She first remarked that her views on political polarization had evolved over the past year. Then she said, “I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end. I think that it’s a matter of, like, winning.” 

Justice Alito’s response was stunning:

“I think you’re probably right. On one side or the other — 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. They really can’t be compromised. So it’s not like you are going to split the difference.”

Justice Alito also agreed with Windsor that a fight was necessary to “return our country to a place of godliness.” 

So, two things. And they are big ones.

First, a sitting U.S. Supreme Court justice has just admitted his belief that there are “fundamental” things that cannot be compromised—because you cannot “split the difference” and ultimately “one side or the other is going to win.” This is an ideologically cemented view of the law that confirms both pre-judgment of social and political issues and that the justice will act in a partisan, rather than a judicial, manner.

Justice Alito took an oath before ascending to the Court. In that oath, Alito swore to

administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me…. 

The “without respect to persons” means without prejudice against certain individuals or types of people, including those on the left with political and social viewpoints different than his own. The “impartially discharge” requirement means without bias toward one outcome or the other. But how can this be done when Alito believes in cultural and political absolutes, where differences cannot be split, compromises cannot be achieved, and one side (meaning his) must ultimately win out over the other? This is a justice on a political mission, not a jurist sitting in dispassionate judgment of opposing parties and applying the law equally to all.

There is a clear example of how this bias has played out in practice. As legal analyst Joyce Vance noted, citing a Vox report on Alito’s record, the justice has a highly questionable record when it comes to his rulings on legal standing. The question of standing is a preliminary one in all cases. It asks simply whether parties that come before the Court have a right to sue and present their case. On this basic question, Justice Alito has ruled for conservatives 100% of the time and against liberals 100% of the time. Of course, standing is supposed to be a neutral requirement, not a political litmus test. Justice Alito has treated it solely as the latter.

Perhaps the best way to understand how extreme an oath-breaker Alito has become is to hear the words of Chief Justice John Roberts, whom Windsor also surreptitiously recorded at the event. When Windsor stated to Roberts that she believed the Court had an obligation to lead the nation on a more “moral path,” Roberts pushed back forcefully.

“Would you want me to be in charge of putting the nation on a more moral path?” the Chief Justice responded. “That’s for people we elect. That’s not for lawyers.” He also insisted that polarization was not irreparable, citing the Civil War and the Vietnam War as two national crises that we managed and ultimately emerged from.

Now for the second big thing. Justice Alito has confirmed his utter abandonment of the principle of separation of church and state. Again, looking at his oath, it was to the “Constitution and the laws of the United States,” and not to any church or religious text. And yet, he agreed with Windsor when she said that the nation had to “return to a place of godliness.”

The First Amendment commands that the government “shall make no law respecting an establishment of religion”—something known widely as the Establishment Clause. It’s the part of the First Amendment that religious extremists routinely ignore. The U.S. can never “return” to a place of godliness because ours is not and never was a society grounded in any one religion, or any religion at all for that matter. 

Again, to make this point, look at how Chief Justice John Roberts responded to the same point. Windsor stated, “I believe that the founders were godly, like were Christians, and I think that we live in a Christian nation and that our Supreme Court should be guiding us in that path.” Chief Justice Roberts quickly answered, “I don’t know if that’s true.” He added, “I don’t know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say maybe not, and it’s not our job to do that.”

Based on his own admissions, even if obtained through deception, Justice Alito should recuse himself from any case that pits liberal values against conservative ones, given how he views the whole culture war as an all-or-nothing game that his side must win. No litigant would ever reasonably expect to get a fair shake, and everyone now knows it from his own mouth. Indeed, it’s such a hopeless conflict of interest and apparent bias that the justice should immediately resign or be impeached for it; there is simply no realistic way he can continue to serve as an “impartial” justice with so many high stakes cases on the docket on which he would otherwise have a say and a vote.

An unhinged bigot, exposed

Most of what we have heard about Justice Alito’s wife, Martha-Ann, has been through her husband, who seemed content to state that it is his wife who is “fond of flying flags” while he is not. But a neighbor has since bravely come forward and given an interview suggesting that the Alitos are lying about the timeline of events around the flag and painting a picture of the worst kind of political spouse—entitled, abusive and threatening. 

And we thought Ginni Thomas was alone in the SCOTUS basket of deplorable spouses.

Now we have many of Martha-Ann’s own words captured on tape, and that picture has come into clearer focus. In her conversation with Windsor, she displayed sneering homophobia, complaining she has to look across the lagoon at a Pride flag. She vowed legal retribution on the media, noting a five-year statute of limitations and saying “I’ll get them. I’m gonna be liberated, and I’m gonna get them.” 

She also promised that when her husband was “free of this nonsense,” she would fly her own flag bearing the word “Shame” in Italian.

You can hear an excerpt of their conversation here.

Most news reports have focused on what a horrible, bigoted person Martha-Ann Alito is, and that’s fair. But I want to drill down a bit on what she is actually implying with respect to her husband’s position on the Court and how it becomes an unresolvable ethical conflict.

Mrs. Alito told Windsor that she intended to come back and sue the media for their reports about her. Presently the media has strong First Amendment protections under New York Times v. Sullivan and can only be successfully sued if the plaintiff has demonstrated “actual malice,” meaning knowing or reckless disregard for the publication of falsehoods. 

Donald Trump has made it clear that he wants the libel laws changed. He explained,

“So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Certain members of the Court also want to change the law to make it easier for parties to sue the press. Both Justices Gorsuch and Thomas have expressed opposition to the Sullivan standard, the latter quite forcefully. Now, with his own wife wanting to sue the media for libel, Alito is already conflicted.

But what about that reference to the statute of limitations? And the bit about her husband being “free of this nonsense,” what was that all about?

Mrs. Alito hopes that her husband can retire and be “free” of constraints so she can seek her legal vengeance and fly whatever flag she wants. There’s just one thing: Alito wants to retire only when he knows his replacement will be someone chosen by Trump. He’s certainly hanging on till past the election to make that decision. As Windsor observed in her interview with Joy Reid on MSNBC, that means Mrs. Alito will get to sue the media, likely for millions, only if Trump wins and Alito gets to retire.

Justice Alito now has a strong personal and financial reason to help ensure Trump wins, far beyond merely preserving his extremist legacy. Every time Alito rules on a question of Trump’s involvement in January 6, including on the question of his immunity from prosecution, the public will know he has a personal stake in the outcome. After all, his wife really wants him to retire during a second Trump presidency before that statute of limitations runs out.

Further thoughts

It’s easy to become discouraged given that Alito will never recuse himself and will certainly never resign; the Chief Justice will do nothing to rein Alito in; and the GOP-controlled House would never vote to impeach him. 

Democratic candidates for national elected office, however, now have a potent new weapon. They can campaign on the promise to hold oath-breakers and corrupt justices like Alito and Thomas to account. They can promise to join their colleagues in a Democratic House majority to impeach the two sitting justices. They can make things very difficult, and deservedly so, for these two and their billionaire backers. To do this, they need the power of the majority in the House, and voters can certainly deliver that come November.

Extremism and corruption are things most Americans still don’t want in our highest Court. It’s a great campaign issue because it forces the GOP to defend the justices in an untenable way, even while paving the way toward the kind of transparency and accountability for the Court that the American people are demanding.

And who knows? If a Democratic majority in Congress is bent on exposing corruption, bias and cronyism in the Court, one or both of these septuagenarians may just figure it’s not worth it to try and hold out for another four years on the Court, even if that means Biden will name their successors. Two arch-conservative extremists gone from the Court means a 5-4 liberal majority.

But who’s counting, right?