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Fear Of A Black Santa: Sam Alito Goes WILD At Supreme Court Oral Argument

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(Image via Frinkiac & Getty & my photoshop skills)

The oral argument in 303 Creative LLC v. Elenis should’ve been straightforward. Federal courts declared advisory opinions a non-starter since 1792, but I guess “John Jay” doesn’t cut it with this deeply originalist Supreme Court.

So instead of the resounding sound of courtroom doors slamming shut, we were treated to Sam Alito going off on Black kids in Ku Klux Klan outfits, Ashley Madison, and that most terrifying concept in the right-wing imagination: Black Santa! Alito had himself a day, folks!

In this case, a woman who runs a website graphic design business that does not offer wedding websites sued over laws that she might breach if she ever decided she will offer wedding websites and then a same-sex couple hypothetically would ask her to design one. As test cases go, this is like Rosa Parks saying she once thought about buying a bus ticket but took a taxi instead. The comparison to the civil rights movement is apt for another reason, as the crux of the nonsense — but inevitably successful — argument is just a rehash of segregationist arguments.

Just like the Southern restauranteurs of yesteryear, the designer has every right to be a bigot on her own time, but if she chooses to enter the stream of commerce, she has to abide by anti-discrimination laws. She is not being forced to speak, a fact all the more glaring considering she is not actually offering this service now. If she does, she can’t refuse services to couples because they’re gay any more than she can refuse services to mixed race couples — which would be absolutely justified by the opinion the majority previewed yesterday.

In a world where creators are routinely screwed over by the law’s overly broad interpretation of a “work-for-hire, it’s more than a little disingenuous to hear justices suggest “you, madam, are a true AR-TEEST whose vision cannot be compromised when you slap clipart together for a fee!” Yet here we are.

Bringing us to Sam Alito’s wild ride.

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Justice Jackson asked 303 Creative’s lawyer, Kristen Waggoner (who you may remember as the hate group representative who inspired Yale Law School’s embarrassing free speech debacle), how her desired relief would deal with a mall Santa photo operation that only allowed white children. Waggoner conceded that this would be an “edge case,” because some people simply refuse to say the quiet parts quiet. On a serious note, in a more reasonable world, an advocate would respond “oh, no, of course not… this is very limited to this” whether it’s a lie or not. But with what we call the YOLO Court, there’s no reason to hold back.

Justice Alito came to the… rescue?… trying to turn this hypothetical on its head, asking the Colorado Solicitor General Eric Olson if a Black Santa could refuse to take pictures with children dressed up in KKK outfits. HMMMMMMMM!

Without missing a beat because he, presumably, passed his first year of law school, Olson pointed out that Klan members aren’t a protected class. Justice Kagan tried to give Alito a face-saving out by noting that even in this example it would be an objection to the outfit and not whether the child was white or Black. Alito responded, “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time.” Oh, domestic terrorism is so funny!

But what was up with this hypothetical in the first place? Other than invoking one of the right’s most time-honored boogeymen, there really wasn’t any grounding in the discussion before the Court. It’s as though he heard “racist mall Santa” and his brain wanted to pop out, “you know who the REAL RACISTS are? Black Santas!”

If Alito stopped here he’d already have disgraced himself thoroughly, but he was not done!

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Turning to a series of hypotheticals produced by conservative legal movement caricature Josh Blackman, Alito asked about “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.” Justice Kagan replied, “It is.” Which is objectively funny.

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

Which is objectively not funny. And, in most workplaces, joking that your coworker frequents a website for setting up extramarital affairs, might set up a sexual harassment complaint, but the Supreme Court has no rules and discrimination laws aren’t long for this country anyway, so Alito doesn’t have anything to worry about.

Alito focused a lot on Blackman’s hypotheticals about Jewish photographers feeling religiously persecuted — Alito specifically asked about a Jewish photographer opposed to religious intermarriage covering a Jewish-Goy wedding — which is a little rich considering Blackman has publicly argued that many Jewish religious beliefs don’t deserve constitutional protection. To use Blackman’s language, wouldn’t the opposition to intermarriage be more of an “aspirational principle” in his worldview? But consistency is the hobgoblin of non-hacks.

There’s a theory out there that Alito is furious that his opinions have systematically eroded the legitimacy of the Supreme Court. Maybe. But if legitimacy ever motivated Alito, rolling into oral argument to muse about Black Santas and baby Clayton Bigsbys and Sheriff Barts isn’t helping.

As they say, “it is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.” Maybe this is the critical difference between Justice Alito and Justice Thomas.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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