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Analysis of what a hidden microphone may have revealed about the Supreme Court

STEVE INSKEEP, HOST:

OK. Let's talk about this more with Sarah Isgur. She's an editor at The Dispatch and a former spokeswoman for the Justice Department during the Trump administration. Sarah, welcome back to the program.

SARAH ISGUR: Thanks for having me.

INSKEEP: What did you think about when you learned about these secret recordings?

ISGUR: So there's two different ways to hear these, right? Substantively, Justice Alito certainly does give very different answers than Chief Justice Roberts, but the questions are also asking him, as a Catholic, don't you think the country should be more godly? It's his personal views. It's not about the law or the court, so I feel very mixed about the substance because of that. But there's another issue here, which is the justices already feel like they're retreating from public appearances, from engaging with people they don't already know very well. This, I fear, is going to push them even to a more cloistered life, to a more - less engaged with us as journalists, with the public, with explaining who they are, because anytime they try to say who they are - be it Alito saying he's a Catholic who believes the country should be more godly - they're attacked for it as being unethical.

INSKEEP: Isn't Alito, himself, pretty forward, and public, and outspoken about his views on just about everything?

ISGUR: Yeah. I mean, nothing in this recording actually is new for Justice Alito. This is all stuff he's said before. I think the fact that it was secretly recorded makes people believe they're hearing something salacious, when Justice Alito has given many public speeches about the importance of his Catholicism to his life.

INSKEEP: At the same time, isn't there a big difference between Alito and Chief Justice Roberts, who draws pretty clear lines between whatever his private beliefs might be and what he sees his public duty as?

ISGUR: Yeah. I like to think of the difference between Chief Justice Roberts and Alito, both personally, jurisprudentially, everything else - it's a bit highlighted here. Chief Justice Roberts is the ultimate institutionalist. He is, first and foremost, the chief justice of the Supreme Court, so when he answers any question, I think he believes he's answering as chief justice. And you heard that in the recording, where no matter what she asks, he answers as the chief. She asked him about his personal views? Nope, he's the chief justice, whereas with Justice Alito, he's not an institutionalist. First and foremost, he is Sam Alito, and you see that in his opinions, and you also see it in his answers to her questions, where he's happy to answer about his personal views about the country.

INSKEEP: Do you wish you knew what Justice Roberts' private views were on things, or are we actually hearing the important stuff from him?

ISGUR: Both.

(LAUGHTER)

INSKEEP: OK. You wish he would say more, but he is saying what he ought to say. I get it. Let me ask about Martha-Ann Alito, Justice Alito's wife, because the filmmaker also recorded her. And I guess I should remind people, Justice Alito's wife is in the middle of controversy because Justice Alito had an upside-down flag outside of one of his houses, a different flag outside of another of his houses. Both could be taken as support for the January 6 attack on the U.S. Capitol. He blamed these flags, in a letter, on his wife. My wife flies flags; I can't do anything about it. And now we hear from Martha-Ann Alito, and here's some of what she said in the hidden recording.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

MARTHA-ANN ALITO: I want a Sacred Heart of Jesus flag because I have to look across the lagoon at the Pride flag for the next month.

LAUREN WINDSOR: Exactly.

ALITO: And he's like, oh, please don't put up a flag. I said, I won't do it, because I'm deferring to you, but when you are free of this nonsense, I'm putting it up, and I'm going to send them a message every day.

INSKEEP: What do you hear there, Sarah Isgur?

ISGUR: Well, it's interesting. So on the, sort of, first blush, she's confirming everything that the Alitos have told us about their marriage and about her love of flags. She basically dreams in flags. When she thinks about how to send messages to those she thinks are pitted against her, she thinks in flags, which is what they told us. And some people had doubted, you know, that he was just blaming his wife, but of course, this was him as well. So it's interesting that actually, here, the recording seems to confirm their side of the story.

There's also several times - I think I counted four or five - where Miss Windsor curses. She uses the F-word with Mrs. Alito, to clearly try to get her to use it back, which would confirm what the neighbor had said - that Mrs. Alito had cursed at them first - and Mrs. Alito doesn't take the bait on that, but this is about spouses and what we expect of spouses of powerful people in the country, and I have to say, I think, sort of, there's this feminist strain in me that thinks, let them have their opinions, do what they want. She's not a Supreme Court justice.

INSKEEP: It seems like we're getting at the divide here between people who are human beings with private lives but also have public functions, where they're supposed to behave a certain way. It's hard to keep that line bright.

ISGUR: That's right. And the Supreme Court justices' spouses have always struggled with this. Ruth Bader Ginsburg's husband had a thriving legal practice, but at a firm that had cases before the Supreme Court. Now Justice Barrett's husband has legal practice. His firm doesn't practice before the Supreme Court, but they have clients, and now you're hearing that they - that critics of the court want to see his client list. So this is nothing new. It's also not going away, but Flag-gate has certainly captured the country's imagination.

INSKEEP: Sarah, thanks for your insights. I really appreciate it.

ISGUR: Thank you.

INSKEEP: That's Sarah Isgur of The Dispatch, and we're here talking on this morning when we have, I don't know, a bihemispheric show, because Rob Schmitz, my co-host today, is in Europe, in Berlin, in the other hemisphere. And Rob, I'm just curious how all of this debate over the United States Supreme Court looks in Europe - whether people pay attention, or whether things just feel very different there.

ROB SCHMITZ, HOST:

Yeah. It's interesting. The microscopic detail that you just described with (laughter) our last guest...

INSKEEP: (Laughter).

SCHMITZ: ...Is fascinating. I don't think it happens at that level here, but I think that the judicial systems of many countries here in Europe are, you know, widely considered to be the cornerstone of these democracies. Next door in Poland, this was at the center of the last election, and the government that tried to restrict independence of judges were voted out of office - so, yeah, it is definitely part of the conversation in many countries here.

INSKEEP: OK - a very American issue, but also a global issue. That's NPR's...

SCHMITZ: That's right.

INSKEEP: ...Rob Schmitz, who's co-hosting this week from Berlin.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

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