The Volokh Conspiracy

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Chief Justice Roberts and Justice Alito Secretly Recorded at the Supreme Court Historical Society


I have been a member of the Supreme Court Historical Society for more than a decade. I very much enjoy reading the Journal of Supreme Court History. Also, when I am in town, I try to attend various events, especially the re-enactment of famous cases. One of my favorites was seeing Justice Ginsburg preside over a re-enactment of Muller v. Oregon. I nearly burst out laughing when she cited favorably the precedent of Lochner v. New York.

Every year, the Society holds an annual meeting at the Supreme Court. (During the pandemic, the meeting was held online). I attended the recent meeting on June 3, 2024. The session began with a tour of the Court, followed by a screening of Holmes—The Film. (The Society recorded the one-man show about Justice Oliver Wendell Holmes preparing for his 90th Birthday address). The society then held a business meeting, where we voted on a new slate of officers and a few other matters. The meeting was open to the press. (Josh Gerstein from Politico was taking notes!) After the meeting, there was a cocktail reception on the ground floor. The reception and the dinner were not open to the press, but anyone who purchased a ticket could attend. This is not a secret cabal.

As is the custom, there is usually a Justice present at the Society's meetings. Justice Alito was there at the cocktail hour. You can imagine how these sorts of events proceed. There are a throng of people who wish to meet the Justice. So people sort of mill around, and wait for an opening. They exchange a few words with the Justice. And when the time is right, they move on. Justice Alito was very gracious, and spoke with many people that evening.

After the cocktail hour concluded, we went upstairs to the great hall for a banquet dinner. Chief Justice Roberts was at one table, Justice Alito at a second table, and Justice Jackson at a third. Again, people would often go up to the Justices, introduce themselves, say a few things, and move on. This sort of exchange is quite common at banquet dinners. Roberts, Jackson, and Alito, all interacted with the guests in attendance.

There was a tasty dinner (I had the fish). Chief Justice Roberts gave the traditional toast ("To the President of the United States"). And there was a delicious dessert. Yes, I took a picture.

That's it! It was a fun evening, and I was quite glad to attend the Society's 50th Anniversary dinner.

But not everyone was there to have fun. Lauren Windsor, who identifies herself as a "Journalist," secretly recorded her conversations with Chief Justice Roberts and Justice Alito. You can listen to them here.

Ms. Windsor gave the exclusive to Rolling Stone, which describes the gathering as a "function that is known to right-wing activists as an opportunity to buttonhole Supreme Court justices." As I looked around the room, I did not see "right-wing activists." Indeed, I counted only a handful of Federalist Society members that I recognized in a gathering of about 200 guests. Carter Phillips, who does not wear a MAGA hat, was just elected as President of the society. These were people who were interested in the Supreme Court and its history, not ideologues.

I listened to the recording. Justice Alito did not say anything inappropriate. Indeed, I suspect he was mostly being polite and trying to make conversation with someone who was (pretending to be) genuinely interested in talking about our nation. Chief Justice Roberts said about what you would expect him to say–that elected officials and not judges should be in charge of making policy. There is no news here, other than the fact that the Justices are being privately recorded at the Supreme Court.

Ms. Windsor did not record any conversation with Justice Jackson, who was also in attendance. Maybe she could have asked about the Beyonce concert? Again, no one has ever protested outside of Justice Jackson's home. She is safe.

While officers will screen for recording devices when the Court is in session, there were no such checks for the cocktail hour. And who would even think that was necessary? I fear that Justice Alito will no longer participate in Society events. Why would he risk having his private conversations being blasted on the internet? More and more, Justice Alito can only whisper his thoughts in the recesses of his home.

Update: I agree entirely with Jim Duff:

James Duff, the executive director of the Supreme Court Historical Society, lamented 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.

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."

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