Justice Samuel A. Alito Jr. told a woman posing as a Catholic conservative last week that compromise in America between the left and right might be impossible and then agreed with the view that the nation should return to a place of godliness.
“One side or the other is going to win,” Justice Alito told the woman, Lauren Windsor, at an exclusive gala at the Supreme Court. “There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”
Ms. Windsor pressed Justice Alito further. “I think that the solution really is like winning the moral argument,” she told him, according to the edited recordings of Justice Alito and Chief Justice John G. Roberts Jr., which were posted and distributed widely on social media on Monday. “Like, people in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.”
“I agree with you, I agree with you,” he responded.
The justice’s comments appeared to be in marked contrast to those of Chief Justice Roberts, who was also secretly recorded at the same event but who pushed back against Ms. Windsor’s assertion that the court had an obligation to lead the country on a more “moral path.”
“Would you want me to be in charge of putting the nation on a more moral path?” the chief justice said. “That’s for people we elect. That’s not for lawyers.”
Ms. Windsor pressed the chief justice about religion, saying, “I believe that the founders were godly, like were Christians, and I think that we live in a Christian nation and that our Supreme Court should be guiding us in that path.”
Chief Justice Roberts quickly answered, “I don’t know if that’s true.”
He added: “I don’t know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say maybe not, and it’s not our job to do that.”
The chief justice also said he did not think polarization in the country was irreparable, pointing out that the United States had managed crises as severe as the Civil War and the Vietnam War.
When Ms. Windsor pressed him on whether he thought that there was “a role for the court” in “guiding us toward a more moral path,” the chief justice’s answer was immediate.
“No, I think the role for the court is deciding the cases,” he said.
The justices were secretly recorded at an annual black-tie event for the Supreme Court Historical Society, a charity aimed at preserving the court’s history and educating the public about the role of the court. The gala was open only to members, who pay $500 to join the society, and was not open to journalists.
Chief Justice Roberts and Justice Alito did not immediately respond to requests for comment, but the charity released a statement on Monday that its “policy is to ensure that all attendees, including the justices, are treated with respect.”
The charity added: “We condemn the surreptitious recording of justices at the event, which is inconsistent with the entire spirit of the evening.”
Ms. Windsor describes herself as a documentary filmmaker and “advocacy journalist.” She has a reputation for approaching conservatives, including former Vice President Mike Pence, Representative Jim Jordan of Ohio and Gov. Glenn Youngkin of Virginia.
She said in an interview on Monday that she felt she had no other way to report on the candid thoughts of the justices.
“We have a court that has refused to submit to any accountability whatsoever — they are shrouded in secrecy” Ms. Windsor said. “I don’t know how, other than going undercover, I would have been able to get answers to these questions.”
Ms. Windsor would not say how she recorded the encounters, other than that she did not tell the justices she was a journalist or that they were being recorded. She said she felt she needed to record the justices secretly to ensure that her account would be believed.
“I wanted to get them on the record,” she said. “So recording them was the only way to have proof of that encounter. Otherwise, it’s just my word against theirs.”
Some journalism ethics experts questioned her tactics.
Jane Kirtley, a professor of media ethics and law at the University of Minnesota, said that the episode called to mind the tactics used by Project Veritas, a conservative group well known for using covert recordings to embarrass its political opponents.
“I think it’s fair to say that most ethical journalists deplore those kind of techniques,” Ms. Kirtley said. “How do you expect your readers or your viewers to trust you if you’re getting your story through deception?”
Bob Steele, a retired ethics scholar at the Poynter Institute, has written ethics guidelines for journalists on when it is appropriate to use secret recordings or to conceal their identities as reporters.
“I don’t believe that in this particular case the level of misrepresentation of her identity and the surreptitious audio recording is justifiable,” Mr. Steele said.
The secret recording is the latest controversy around the Supreme Court and its justices, particularly Justice Alito, who has faced recent revelations that provocative flags flew outside two of his homes. The flags raised concerns about an appearance of bias in cases currently pending before the court tied to the Jan. 6, 2021, attack on the Capitol.
In the weeks following the attack, an upside-down American flag, a symbol used by Trump supporters who contested the 2020 election results, flew outside the Alitos’ suburban Virginia home. Last summer, a flag carried by Capitol rioters, known as an “Appeal to Heaven” flag, was flown at their New Jersey vacation home.
Justice Alito has declined to recuse himself from any of the Jan. 6-related cases and has said that it was his wife who flew the flags.
This is also not the first time the historical society has been in the spotlight. The group, which has raised millions of dollars in recent decades, made news after the Supreme Court overturned Roe v. Wade when a former anti-abortion leader came forward to say that he had used the historical society to encourage wealthy donors, whom he called “stealth missionaries,” to give money and mingle with the justices.
