On Monday, the Supreme Court heard arguments in a case that’s framed as being about free speech but is actually a Trojan horse for upending civil rights protections. So, naturally, the Supreme Court’s chief troll, Justice Samuel Alito, decided to joke around about the Ku Klux Klan.
The case is 303 Creative v. Elenis, in which a Colorado website designer is arguing that the state’s anti-discrimination law violates her free speech rights. The designer, Lorie Smith, said the state’s rule prevents her from selling wedding websites because she only believes in heterosexual marriages and doesn’t want to serve gay couples. The case is related to 2018's Masterpiece Cakeshop, and it could not only affect the rights of LGBTQ people, but also open the door for even more legalized discrimination based on race, religion, or disability status.
Early in the hearing, Justice Ketanji Brown Jackson asked a hypothetical question to make a point that a photo studio offering 1950s-style Christmas photos with Santa couldn’t refuse Black customers just because segregation was legal at that time.
Alito later tried to use this as a jumping off point, suggesting that letting businesses refuse certain clients is good, actually, because that allows them not to serve groups like the KKK, seemingly thinking he’d delivered a stunning checkmate to the woke libs.
“If there’s a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that Black Santa [can’t refuse] that?” Alito asked.
Eric Olson, the lawyer for Colorado, responded that of course a business could refuse that customer, because being a KKK supporter isn’t a protected class—it’s not an immutable part of someone’s identity like race, sex, gender, or disability status.
Justice Elena Kagan jumped in to say that refusal would be permitted no matter the identity of the child wearing the KKK garb, whether they were Black, white, or any other protected characteristic.
Then Alito snarked: “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time.” Kagan was clearly annoyed that he interrupted her as she was trying to make a point, and asked if he was done with his little routine, saying “Can I...Is that alright?”
Here’s a clip of the moment from Slate writer Mark Joseph Stern:
Minutes after this nonsense, Alito decided that, no, he was not done. He said: “Now back to my Black Santa example.”
This is fairly galling behavior from a man who very recently faced scrutiny for his judicial conduct. In November, the New York Times reported that Alito allegedly leaked the outcome of the 2014 Hobby Lobby birth control decision—which he wrote—to conservative activists before it was public. Alito also wrote the opinion in this year’s case overturning Roe v. Wade, a draft of which leaked in May, and Congress is actively investigating that leak.
Shameless justices like Alito and Clarence Thomas know there’s almost nothing that can get them sanctioned or removed from the Supreme Court, as they’re appointed for life, don’t have the same ethics rules as other federal judges, and the Senate is so unrepresentative of America that there will never be enough votes to impeach them. It’s no wonder that the Supreme Court’s approval rating is now net unfavorable, and a majority of Americans want to see it expanded.