Why the new Justice Alito recording is so unsettling

There was never any doubt about Supreme Court Justice Samuel Alito’s political views, long before flags of Trumpist insurrection were seen flying above his homes. His decisions and his questions at oral arguments have earned him his reputation as the most partisan of the conservative justices, eager to bend the law to the Republican Party’s interests.

So when a surreptitious recording of Alito emerged Monday — combining two discussions between Alito and someone he thought was a conservative, but who was actually a liberal activist — most of his comments were entirely in line with what we already knew about him. It was hardly surprising, for example, that Alito agreed with the activist, Lauren Windsor, that the U.S. needs to return to “godliness.”

But Alito did share one disturbing belief for the first time — a view that is also held by millions of people on both sides of our political divide, one that makes politics more intense and toxic.

There are no final victories in a democracy.

At one point in the conversation, Windsor prompted Alito with a question about political polarization. “I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” she said. “I think that it’s a matter of, like, winning.” Alito agreed, “I think you’re probably right.” (Alito did not return NBC News’ request for comment.)

Then the justice took the argument even further: “One side or the other is going to win,” he said. We might be able to find “a way of living together peacefully,” he allowed, “but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference.” 

This is a far more troubling notion than most people seem to realize, especially coming from a Supreme Court justice. When you’re talking about the fundamental architecture of politics and the grand ideological struggle, one side is most certainly not going to win. And a powerful decision-maker — especially one in the judiciary — should recognize that. 

There are no final victories in a democracy. No matter how much you hate your political opponents, they aren’t going to disappear. If you’re a liberal, there will always be conservatives. And vice versa. 

We’re all susceptible to the vain hope that, with the right combination of persuasive argumentation and clever political strategy, our political struggle could come to a final conclusion, all policy questions will be resolved in our favor, and a glorious future will come to pass. But most of us understand that a final political battle won’t ever occur.

Democrats aren’t pretending that either the left or right will disappear depending on who wins in November.

Unfortunately, too many on the right — including Alito — think otherwise. Any Democratic victory, even one led by ordinary center-left politicians like Hillary Clinton, Barack Obama or Joe Biden, is treated as the literal end of America. And if you take that idea seriously, you’ve raised the stakes of politics disturbingly high. It would mean that the conflict ends with obliteration, either ours or theirs. Either we will win and our enemies will be destroyed, or they will win and we will be destroyed. And since that final battle is upon us, almost nothing is out of bounds.

If you doubt, just listen to a Donald Trump rally or a typical hour on conservative talk radio. The apocalyptic warnings are constant: If we lose this election, the rank-and-file are told, it won’t just be bad, it will be cataclysmic. “The country is finished” if Biden is re-elected, Trump says. “You won’t have a country anymore.” Christianity will be outlawed, homicidal immigrants will overrun your town, a combination of lawlessness and iron-fisted government oppression will prevail, and America will cease to exist. 

But aren’t there Democrats making similar apocalyptic warnings about a Trump victory this November meaning the end of democracy? To a degree, but there are two differences. First, Democrats aren’t pretending that either the left or right will disappear depending on who wins in November. Second, Trump and his allies are quite explicitly laying out a radical plan for something that looks a lot like fascism; they’re hardly being shy about their contempt for our constitutional system and their desire to dismantle it. If someone else was the presumptive Republican nominee, with a standard conservative agenda, it would be a far different story.

In a democracy, politics never ends. We’ll keep on arguing and debating and struggling. One side can achieve some of its goals, even a great many of them. Some policy questions do get settled with one side winning. But there is no final battle in a democracy, no point at which politics is over. The understanding that you can lose today but win tomorrow — and then lose again, and win again — is indispensable to a commitment to the democratic system. Abandon it, and before long you’re beating up cops and smashing down the doors of the Capitol. 

Alito seemingly rejects this commitment. He wasn’t talking about any one issue when he said “one side or the other is going to win,” but about the ongoing struggle between right and left. He seems to think the battle is coming to its climax, and he’s going to do his part to help his side prevail. To him, the Supreme Court is just one more theater in the grand war against liberalism. Which is why he sullies the court every time he puts on his robes and strides into battle.

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