Not Funny: Liberals Are Furious Conservative Supreme Court Justice Has Sense of Humor

Justice Samuel Alito / Getty Images
December 6, 2022

Justice Samuel Alito made a joke during oral arguments Monday, a seemingly innocuous exchange that caused liberals to call for his impeachment.

Liberals lambasted Alito and called for him to be impeached for employing "outlandish hypotheticals" involving black children dressed in Ku Klux Klan robes. Vanity Fair dubbed the justice "the biggest sleazebag on the Supreme Court," and at least one Twitter user called for the impeachment of Alito and, inexplicably, Justice Clarence Thomas.

"How can anyone—especially Gen Z who saw this court literally overturn the right to an abortion—take this court seriously with people like Alito & Thomas on the bench?" said Victor Shi, the self-proclaimed youngest 2020 Democratic delegate for Joe Biden. Another Biden delegate said, "Anyone surprised Alito … is also racist & cracks KKK jokes?"

"Klan jokes aren't funny under any context," tweeted Columbia law professor Katherine Franke.

Supreme Court justices frequently use hypotheticals to test a particular jurisprudence. Bloomberg earlier this year hailed then-retiring justice Stephen Breyer as the "king of hypotheticals," referencing a case in which he described a mob of mutant "tomato children" terrorizing Boston.

Alito's comments came as the justices debated the limits of government-compelled speech. Justice Elena Kagan said that a black Santa Claus should not by law have to entertain a child dressed in a Klan outfit, "whether the child was black or white or any other characteristic." In response, Alito quipped that "you do see a lot of black children in Ku Klux Klan outfits, right?" drawing laughs inside the courtroom.

The justices were hearing arguments in 303 Creative LLC v. Elenis, which centers on a Colorado web designer who says the state's public-accommodation law compels her to design wedding websites for same-sex couples, in violation of her religious beliefs.

Kagan and Alito were each responding to Justice Ketanji Brown Jackson, who compared Smith to a mall photographer who only photographs white children on Santa's lap. According to Jackson, both are engaged in unlawful discrimination.

But Smith's attorney Kristen Waggoner argued the Court has an obligation in the case to uphold its ruling in Obergefell v. Hodges, the landmark 2015 case legalizing same-sex marriage, which included protections for religious proponents of traditional marriage.

"The Court's promise in Obergefell is to protect those who would believe marriage is between a man and a woman from having to express a view that violates their conscience," Waggoner said on Monday.

Smith has also expressed in interviews that she is comfortable serving same-sex couples as clients as long as she is not forced to promote a message that violates her conscience.

Alito expressed at a Federalist Society event in 2020 that his remarks often get twisted by the press.