Samuel Alito, Ketanji Brown Jackson and Elena Kagan
Santa Claus, the KKK, and other bizarre hypotheticals raised by Supreme Court in LGBTQ rights case
03:29 - Source: CNN

Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion on CNN.

CNN  — 

If anything sums up the increasing arrogance and fecklessness of our now far-right Supreme Court, it is this: The same Supreme Court justice who penned the decision stripping a fundamental right from American women spent Monday on the bench making a joke about Black children in KKK outfits.

Jill Filipovic

Justice Samuel Alito, who signed his name to the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade and has catapulted millions of American women into a dystopian misogynist hellscape that has nearly cost many of them their lives, apparently decided to play Court Jester by making a series of inappropriate jokes Monday during oral arguments for a case addressing whether a website designer could hypothetically refuse service to gay clients for their weddings. The basics are this: A Colorado graphic designer who wants to create wedding websites says she won’t make those websites for same-sex couples getting married, but she will make them for opposite-sex couples.

Notably, this woman isn’t yet running a wedding website business; she also hasn’t been sued by anyone or been in any way challenged for breaking Colorado’s anti-discrimination laws. Her case is before the Supreme Court anyway. Her lawyers say that requiring her to provide wedding websites to gay couples if she’s providing them to straight ones is tantamount to her publicly endorsing same-sex marriages, which is compelled speech and a violation of her First Amendment rights.

But opponents argue – and I would agree – that the more fundamental question in this case is whether a business open to the general public can refuse service to people in violation of state anti-discrimination laws under the guise of free speech or religious freedom.

It’s an important anti-discrimination case with the potential to shape whether laws barring discrimination on the basis of race, sex, religion and sexuality can continue to stand. In the narrowest sense, it could make same-sex marriages second-tier, not entitled to the same privileges and protections as opposite-sex ones.

But Alito treated it as a big gag, and, it seemed, intentionally misunderstanding and misrepresenting the arguments in favor of enforcing anti-discrimination laws. When Justice Ketanji Jackson put forward a relevant hypothetical about a Santa Claus at the mall wanting to create his own vision of a traditional Christmas by only posing with White children, the lawyer for the graphic designer said he wasn’t sure – that would be an “edge case.”

Then Alito added his two cents: What if, he asked, a Black Santa at the mall refused to pose with children wearing KKK outfits?

This question was met with some snickers from the usually-silent audience in the chamber. And Alito seemed pleased with himself.

He shouldn’t have been. The Colorado Attorney General quickly knocked his question down, responding that there are not legal protections for the right to wear a KKK outfit. Justice Kagan added, too, that the Santa’s complaint wasn’t about the hypothetical child’s race, but the hypothetical child’s outfit.

“You do see a lot of Black children in Ku Klux Klan outfits, right? All the time,” Alito countered – again, trying to joke around from the bench. (Does Justice Alito see a lot of White children in Ku Klux Klan outfits?)

It was all incredibly unbecoming of a Supreme Court justice. But Alito’s behavior also points to something more insidious: how lightly and un-seriously he appears to take these proceedings, which could have dire effects on people’s lives across the country. Alito has been on the far-right end of a right-wing court that has radically undermined not just abortion rights, but the right of students to be free from the establishment of religion in public schools, the ability of politicians to regulate guns, and the ability of the Environmental Protection Agency to deal with climate change. His opinion in Dobbs is dripping with mockery of previous decisions that enshrined women’s rights into law.

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    This all comes as the court’s reputation is in the gutter, and as much of the public is questioning its legitimacy: Fewer than half of Americans now say they trust the Supreme Court. Trust in the court dropped precipitously as it swung to the right, overturned Roe and leaned into overt partisanship by issuing a series of conservative rulings. This is a big problem, not just for the court itself, but for American democracy and stability.

    This court has made clear that it is more than willing to roll back the rights of women and minority groups, and to give preferential treatment to Christianity and Christians. Case by case, it is building an America in which those who look, love or worship differently from the White Christian population have fewer rights and less of an ability to live freely.

    And Alito, arguably the leader of the court’s arch-conservative wing, seems to find it all very amusing.