Samuel Alito made a sarcastic comment about the Ku Klux Klan (KKK) on Monday during oral arguments for a controversial case, triggering laughter in his courtroom and criticism of the Supreme Court justice on Twitter.
During arguments in a case involving Lorie Smith — a Christian web designer from Colorado who did not want to provider her services for same-sex weddings on religious and free speech grounds — Justice Alito sought to make an awkward hypothetical point by asking if a Black individual working as a mall Santa would be compelled to take a picture with a child dressed up in a KKK outfit.
He was expanding Justice Ketanji Jackson’s earlier hypothetical on the shopping mall Santa.
“Can I ask you a hypothetical that just sort of helps me flesh this out,” Justice Jackson asked Kristen Waggoner, lawyer for Ms Smith.
Justice Jackson gave the example of a mall photography business that offers a product called “Scenes with Santa”, according to the court proceedings published by the New York Times.
“Their policy is that only white children can be photographed with Santa,” she said. But the photographer “is willing to refer families of color to the Santa at the other end of the mall who will take anybody, and they will photograph families of colour”.
Justice Jackson then asked Ms Smith’s lawyer: “Why isn’t your argument that they should be able to do that?”
Colorado solicitor general Eric Olson, who is representing the state in the challenge against its law, responded that this wouldn’t be the case, since those outfits “are not protected characteristics under public accommodation laws”.
Justice Elena Kagan said: “Presumably that would be the same Ku Klux Klan outfit regardless of whether the child was Black or white or any other characteristic”.
Justice Alito said snarkily in response: “You do see a lot of Black children in Ku Klux Klan outfits all the time.”
In the audio from C-SPAN, laughter could be heard before Ms Kagan asked if she could proceed with her line of questioning.
Sherrilyn Ifill, former president and director council for the NAACP’s Legal Defense Fund, tweeted that Justice Alito’s comments were “really upsetting”.
She wrote: “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.”
“I’m going to need Justice Alito to stop joking about seeing ‘Black children in Ku Klux Klan costumes’,” Melissa Murray, a professor at New York University’s law school tweeted. “Seriously, what am I listening to?”
Another user on Twitter said: “You can’t make this up: Samuel Alito said there’s ‘a lot of Black children in Ku Klux Klan outfits all the time.’ 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?”
Yet another user @itsalexnj said: “Egregious, horrific behavior [sic] from a Supreme Court justice.”
