After prodding, she captured the justice apparently saying “one side or the other is going to win” the nation’s polarized politics and endorsing her contention that the nation needs to return to “godliness.”
The recording is extraordinary in the sense that it marks a type of hardball political tactic being deployed against the high court that had previously been seen on the campaign trail or in sting efforts by groups like Project Veritas. The recording was first reported by Rolling Stone.
In the audio, the filmmaker Lauren Windsor is heard saying to Samuel Alito she doesn’t think “we can negotiate with the left” to end the nation’s polarization and that religious conservatives need to “win.”
“I think you’re probably right,” he replied. “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.”
Windsor later told the justice people who believe in God have to keep fighting “to return our country to a place of godliness.”
“I agree with you,” Samuel Alito is heard saying. “I agree with you.”
An AI-detection tool run by the nonprofit TrueMedia said it found little evidence that the audio clips released on X were AI-generated. Windsor did not immediately share the full recordings with The Washington Post, so the authenticity of the audio could not be independently verified. Requests for comment by Samuel Alito and Chief Justice John G. Roberts Jr. were not immediately returned.
In a recording of Alito’s wife, made at the same 2024 event, she can be heard making lengthy, impassioned comments about the flag controversy. The justice has said that Martha-Ann Alito was responsible for flying an upside-down American flag at their Virginia home in the weeks after the 2021 attack on the Capitol and a second “Appeal to Heaven” flag at their vacation home in New Jersey.
The justice’s wife tells Windsor in the recording last week: “I want a Sacred Heart of Jesus flag because I have to look across the lagoon at the Pride flag for the next month,” Martha-Ann Alito said apparently referring to her vacation home on the New Jersey shore. Martha-Ann Alito goes on to say when her husband is “free of this nonsense” she will continue to fly her banners. “I’m putting it up and I’m gonna send them a message every day, maybe every week, I’ll be changing the flags.”
It was not clear whether Martha-Ann Alito was referring to her husband moving beyond the flag controversy or to her plans if the justice were to retire.
James Duff, the executive director of the Supreme Court Historical Society, criticized the recordings in a statement.
“We condemn the surreptitious recording of Justices at the event, which is inconsistent with the entire spirit of the evening,” Duff said.
Windsor also released audio of a conversation she made with Samuel Alito at the same event in 2023. He said the court has not been able to identify the leaker of the Dobbs opinion overturning Roe v. Wade, adding “you can’t name somebody unless you know for sure” and saying the court did not have the power to subpoena testimony and records.
The justice also blamed the media for eroding trust in the court in that recording. Gallup opinion polls show regard for the court has dropped significantly in recent years and it remains near record lows.
“They do nothing but criticize us,” he said of the press.
Samuel Alito’s unguarded comments were in contrast to those of Roberts, who was also secretly recorded at the 2024 event by Windsor. Roberts repeatedly declined to wade into political discussions despite prompting by the filmmaker.
Windsor suggested at one point the court has a duty to put the nation on a moral path, but Roberts rejected that idea. “Would you want me to be in charge of putting the nation on a more moral path?” he is heard saying. “That’s for people we elect. That’s not for lawyers.”
Roberts also batted down a suggestion by Windsor that the United States was a Christian nation, citing the perspectives of “Jewish and Muslim friends.”
Windsor said in an interview she felt compelled to make the secret recordings because she feels the court has been unaccountable since news broke of lavish unreported free travel being given to justices by wealthy friends and allies. She said she recorded Samuel Alito during a cocktail reception before the annual dinner and Roberts afterward.
“They are shrouded in secrecy and we have seen them be willing to overturn long-standing precedent in ways that are really extraordinary,” Windsor said. “Americans are really at this crossroads of do we continue with a secular democracy or do we let a conservative majority take us down a path of Christian theocracy.”
The release of the audio comes after the flag controversies had led Democrats to question Samuel Alito’s political impartiality. They called on him to recuse himself from a pair of high-profile Jan. 6-related cases because of the upside-down flag at his Virginia home in the weeks after the 2021 attack on the Capitol and the second “Appeal to Heaven” flag was seen last summer at his New Jersey beach house. Both flags were flown by rioters at the Capitol on Jan. 6.
He has declined to recuse himself from the cases. He said she raised the upside-down flag after a neighborhood dispute and the couple were unaware the “Appeal to Heaven” flag had associations with the “Stop the Steal” movement. Both flags had long histories and other meanings not associated with Jan. 6.
Steve Vladeck, a law professor at the University of Texas who closely tracks the work of the court, said the secret recordings of two justices during an event at the court reinforce the ways in which the justices and institution have become inseparable from — and subject to — all aspects of contemporary political maneuvering.
“I am sad that we’ve reached the point where the justices are getting caught in these gotcha moments, but if there was nothing to get, then this wouldn’t be a story,” Vladeck said.
Vladeck said in his view, Samuel Alito clearly engaged in inappropriate commentary. “Judges aren’t supposed to have an opinion about whether someone is going to win,” Vladeck said. “Winning is not their job.”
Vladeck said he was most surprised that the justice would be so unguarded at a time when he is already under scrutiny and at a Historical Society event that is “already part of this narrative about conservative justices being too cozy with right wing groups.”
The annual dinner in 2024 cost $500 a ticket and was to commemorate the 50th anniversary of the nonprofit organization that preserves and collects the history of the court. The group and its annual dinner was the subject of a 2022 article in the New York Times detailing how donors have sought to use it to gain access to the justices.
In his statement, Duff, the society’s executive director, said: “Attendees are advised that discussion of current cases, cases decided by current sitting Justices, or a Justice’s jurisprudence is strictly prohibited and may result in forfeiture of membership in the Society.”
Drew Harwell, Pranshu Verma, Samuel Oakford and Elyse Samuels contributed to this report.
