Justice Alito Is Right About One Thing

Justice Samuel Alito is right.

Not about the Constitution or the use of history or whether Donald Trump has total immunity for crimes committed in office. No, Justice Alito is right about the fact of unresolvable conflict in American political life.

As he told Lauren Windsor, a liberal documentary filmmaker who surreptitiously recorded their conversation at a dinner held by the Supreme Court Historical Society, “One side or the other is going to win.” He continued, “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.”

It is clear, from both his rhetoric and his jurisprudence, that Alito means the culture war. In a 2020 keynote to a gathering of the Federalist Society, for example, the justice bemoaned changing attitudes on same-sex marriage. “You can’t say that marriage is the union between one man and one woman,” Alito said. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”

In a 2022 address delivered in Rome for the Notre Dame Law School’s Religious Liberty Initiative, Alito warned, “Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power.” Later, in the same speech, he mocked foreign critics of his decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and authorized states to pass draconian (and sometimes deadly) restrictions on abortion and bodily autonomy.

And in May, Alito issued a similar warning, telling the graduating class at the Franciscan University of Steubenville that freedom of religion is “imperiled.” “When you venture out into the world, you may well find yourself in a job or community or a social setting when you will be pressured to endorse ideas you don’t believe, or to abandon core beliefs,” he said. “It will be up to you to stand firm.”

Alito’s vision of nearly tyrannical religious intolerance does not seem to correspond to the reality of a country where three-quarters of Americans claim one religious affiliation or another, where a vast majority of those identify as Christian, and where profession of religious belief is, in most places, a de facto requirement for public office.