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Black Santa, the KKK and why Justice Samuel Alito is facing calls to leave the Supreme Court

The Supreme Court justice is facing pushback for remarks he made during a hearing on Monday

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Supreme Court Justice Samuel Alito speaks during a Federalist Society party in Washington, Monday, Nov. 10, 2022

Supreme Court Associate Justice Samuel Alito speaks during the Federalist Society’s 40th Anniversary at Union Station in Washington, Monday, Nov. 10, 2022.

Jose Luis Magana, Associated Press

Justice Samuel Alito faced swift and intense pushback for comments he made Monday about a Black Santa, the KKK and an online dating site that encourages extramarital affairs.

His controversial remarks came during the Supreme Court’s marathon hearing on 303 Creative v. Elenis, which asks whether a Colorado web designer with free speech concerns can refuse to design wedding websites for same-sex couples.

If you’re wondering how Santa, a white supremacist organization and dating sites came up in reference to that case, it’s because the justices spent most of the 212-hour hearing presenting and then debating hypothetical scenarios with a loose connection to the web designer’s quandary.

For example, Justice Ketanji Brown Jackson wondered if a photographer could refuse to photograph Black children with Santa for his “It’s a Wonderful Life”-themed photo package due to his belief that only white children work for the depiction — so long as the photographer was willing to work with Black children in other contexts.

What did Alito say about the KKK?

Alito’s most challenged comments came in response to Jackson’s Santa story. He put a twist on the hypothetical in an exchange with Eric Olson, Colorado’s solicitor general, asking whether Colorado law would allow a Black Santa to refuse to be pictured with a child wearing KKK robes.

Here’s the transcript of what he said:

Alito: Justice Jackson’s example of the Santa in the mall who doesn’t want his picture taken with Black children. So, 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 has to do that?

Olson: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

Justice Elena Kagan: And presumably, that would be the same Ku Klux Klan outfit regardless whether the child was Black or white or any other characteristic.

Alito: You do see a lot of Black children in Ku Klux Klan outfits, right? All the — all the time.

Court watchers denounced Alito for his joke about Black children in KKK robes, arguing that it had no place in a Supreme Court hearing.

“I’m going to need Justice Alito to stop joking about seeing ‘Black children in Ku Klux Klan costumes.’ Seriously, what am I listening to?,” tweeted Melissa Murray, a law professor at NYU, during Monday’s oral arguments.

Why did Alito reference Ashley Madison?

Alito has also faced pushback for referencing Ashley Madison, an online dating service for people seeking to have an extramarital affair, during Monday’s hearing.

More specifically, some court watchers criticized him for implying that his colleague, Justice Elena Kagan, would be familiar with the site.

Here’s the relevant portion of the transcript:

Alito: OK. An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It’s a dating service, I gather, for Jewish people.

Kagan: It is.

(Laughter.)

Alito: All right. Maybe Justice Kagan will also be familiar with the next website I’m going to mention. So next, a Jewish person asks a Jewish photographer to take a photograph for his ashleymadison.com dating profile.

(Laughter.)

Alito: I’m not suggesting that. I mean, she knows a lot of things.

The transcript shows that Alito’s reference to Kagan did not come out of left field. He brought her up in reference to Ashley Madison because she had weighed in about Jdate.

Although Alito was almost certainly trying to be funny rather than insulting, HR professionals, among others, would still likely discourage listeners from doing a similar gag in their own office. It’s not hard to see how such a joke could cause offense.

Alito has faced similar criticism in the past

This week’s kerfuffle comes just over four months after some other public remarks landed Alito in hot water. The justice was faulted for joking that world leaders have come to regret speaking out about the Supreme Court’s controversial abortion ruling during a speech at Notre Dame’s Religious Liberty Summit in Rome.

“I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law. One of these was former Prime Minister Boris Johnson — but he paid the price,” Alito said, referencing Johnson losing his position.

Citing the speech, commentators accused the justice of centering “himself and his own feelings” and ignoring the pain his ruling caused millions of women.

In other words, they argued he wasn’t being sensitive to how his comments might land among certain less conservative listeners.

Court watchers made similar observations this week, noting, for example, that Alito must not be aware of how his comments would sound to Black listeners.

“I’m listening but this is really upsetting. The joke about Black kids in KuKluxKlan outfits? No Justice Alito, these ‘jokes’ are so inappropriate, no matter how many in the courtroom chuckle mindlessly,” tweeted Sherrilyn Ifill, former president of the NAACP’s legal defense fund, on Monday.

Some observers went as far as advocating for Alito to lose his seat on the Supreme Court.

Neither Alito nor other justices have publicly commented yet on the pushback to Alito’s remarks during Monday’s hearing.