In taped remarks at Supreme Court gala, revealing glimpses of Roberts and Alito

Chief Justice John Roberts of the Supreme Court during the court’s family photo in Washington, on Nov. 30, 2018. Roberts, in a recording, pushed back against the notion that the United States is a “Christian nation.” (Doug Mills/The New York Times)

By Adam Liptak

Chief Justice John Roberts and Justice Samuel Alito have long been a jarring study in contrasts. The chief justice is guarded, embodying a cautious and conventional conception of the judicial role. Alito, an eager combatant in the culture wars, tests the limits of that behavior.

Their differing approaches were on display in surreptitiously recorded comments at a Supreme Court gala last week.

Roberts struck a measured tone in response to efforts by a liberal operative to goad him into saying that there was “a role for the court” in “guiding us toward a more moral path.”

The chief justice responded: “Would you want me to be in charge of putting the nation on a more moral path? That’s for people we elect. That’s not for lawyers.”

Alito, who can be awkward and aggrieved, seemed to take the bait, though what he said on the recording was little different from what he says in public speeches to conservative legal groups and at Catholic colleges.

“One side or the other is going to win,” he told the operative, Lauren Windsor, at an annual black-tie event for the Supreme Court Historical Society. “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.”

Those divergent responses are in one sense surprising. The two justices are both products of the conservative legal movement, and they were named to the Supreme Court within months of each other by President George W. Bush.

But over the years, they have come to stand for very different strains of conservatism and judicial temperament, reflected in their opinions as well as in their public statements. While both are firmly on the right, the chief justice tends to favor a cautious incrementalism. Alito has come to embody a more take-no-prisoners attitude that can leave him open to the charge that his agenda is driven by religious and political commitments.

Their paths started differing at their confirmation hearings.

Roberts’ hearings, in 2005, were widely viewed as a triumph. Sen. Dick Durbin, D-Ill., said at the time that the chief justice had “retired the trophy” for an outstanding performance by a judicial nominee.

The most memorable moment at Alito’s confirmation hearings, by contrast, involved his wife, Martha-Ann, who has been in the news for flying flags said to support the “Stop the Steal” movement. Martha-Ann Alito was also recorded at the gala, speaking about, among other things, a flag she intended to fly to counter a Pride flag.

In 2006, at Samuel Alito’s hearings, his wife left the hearing room in tears when Sen. Lindsey Graham, R-S.C., defended Alito from the charge that his membership in an alumni group was evidence of bigotry. Some found her distress puzzling, as the question was a friendly one, meant to defuse a Democratic attack.

In their early years on the court, the chief justice and Alito were close allies, and their voting records were nearly indistinguishable. They voted together in the majority, for instance, in the 2010 Citizens United campaign finance case.

Days later, President Barack Obama criticized the ruling at the State of the Union address, saying it had “reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”

Six members of the court were present, but only Alito responded, mouthing the words “not true.” He has not attended another State of the Union address. Roberts makes a point of going.

The jurisprudential schism between the two men can be traced to the decisive vote the chief justice cast in 2012 to uphold a central provision of the Affordable Care Act, Obama’s signature legislative achievement. Alito joined a bitter dissent.

In more recent years, they repeatedly differed as Roberts voted with what was for years the court’s four-member liberal wing in cases concerning abortion, young immigrants known as Dreamers, adding a question on citizenship to the census and restrictions on gatherings at houses of worship early in the coronavirus pandemic. Alito was on the other side.

The balance of power on the court shifted in 2020 with the arrival of Justice Amy Coney Barrett. Five conservative members of the court, including Alito, now outflanked its chief justice. They almost immediately reversed course in striking down limits on attendance at houses of worship.

Then, in 2022, Alito wrote the majority opinion overturning Roe v. Wade, speaking for five justices. Roberts issued a concurring opinion, speaking only for himself, that sketched out an incremental approach that would have upheld Mississippi’s 15-week abortion ban but left the fate of Roe itself for later cases.

The chief justice’s approach may be the product of the job he holds, which was itself the result of a kind of happenstance. Bush initially nominated him to replace Justice Sandra Day O’Connor, who announced in July 2005 that she planned to retire. Two months later, as the confirmation hearings neared, Chief Justice William Rehnquist died.

Bush then nominated Roberts to his current post. If not for that change, Roberts would have been one of eight associate justices.

But he is instead the head of the federal judicial branch, with broader responsibilities, notably in guarding the independence and authority of the court.

Alito does not seem to have the same concerns. He is instead, as reflected by his comments last week and many statements, willing to stake out positions on public controversies outside of his judicial writings.

Last month, Alito gave a commencement address at Franciscan University of Steubenville in Ohio, a Catholic institution.

He received an extended standing ovation when a speaker introducing him noted that he had written the majority opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 decision overturning a constitutional right to an abortion.

In his speech, Alito denounced what he said was a lack of tolerance for religion.

“It’s rough out there,” he said, anticipating his comments at the Supreme Court gala. “And, in fact, I think it is rougher out there right now than it has been for quite some time.”