Lithwick Mocks Slate’s Readers on 303 Creative Oral Argument

Published December 5, 2022

National Review Online

I gave up long ago on the hope that Slate’s legal writers might acknowledge and correct their mistakes, much less become trustworthy commentators. But it’s still shocking to see how blatantly dishonest they can be.

Dahlia Lithwick’s piece on the oral argument today in 303 Creative v. Elenis is titled “You Won’t Even Believe Where Oral Arguments at SCOTUS Went Today,” and it bears the subhed “When a justice starts making jokes about a Black child wearing a KKK outfit as a hypothetical, something has gone incredibly awry.” I’m disinclined to hold a writer responsible for a bad headline, but in this case the headline and subhed accurately capture Lithwick’s article.

According to Lithwick, “today’s hearing at the highest court in the land was about levity and mockery, and all the trivial examples of imaginary harms that will never come to pass.” But that is a ludicrous account of an oral argument in which justices on both sides were presenting hypotheticals designed to test the limits of the principles being proposed.

Lithwick tortures her evidence to try to advance her claim. In response to a hypothetical that Justice Jackson presented about a mall photographer who would take Christmas photos only of white kids, Justice Alito asked whether a black Santa at the other end of the mall would have to pose with a kid in a Ku Klux Klan outfit. Justice Kagan, trying to undermine Alito’s hypothetical, intervened to suggest that it did not involve racial discrimination because “that would be the same Ku Klux Klan outfit regardless whether the child was black or white.” In reply, Alito rejected the notion that black kids would be in Ku Klux Klan outfits. (Transcript 75:1-18.)

Here is Lithwick’s account:

Justice Samuel Alito responding to a Ketanji Brown Jackson hypothetical about an all-white Christmas photography package (asking whether it would be discriminatory, which it would be)with his own hypothetical, bizarrely about a Black Santa at the mall who is faced somehow with a child dressed up in a KKK outfit. Alito is trying to probe whether Black Santa should not have to be photographed with the KKK-kid: Haha. “If there is a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who is dressed up in a Ku Klux Klan outfit, Black Santa has to do that?” he asked. The spectators laughed uneasily as Alito joked: “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time.” See, if everyone’s dignity and humiliation is hilarious, then nobody’s is serious. Except Lorie Smith’s, apparently.

Notice that what Lithwick entirely omits is that it was Kagan who introduced the idea of black kids in Ku Klux Klan outfits. Alito was rejecting the idea as implausible. But any gullible reader would think—from this passage, from the subhed, and from Lithwick’s later sarcastic complaint about “the riotously funny prospect of small Black kids dressed up as Klansmen”—that Alito was making a joke.

This is not a mistake that just happens. It’s an artful distortion.

Ditto for the lead “one-liner” that Lithwick complains of:

Justice Samuel Alito joking that Justice Elena Kagan might be more familiar than he is with the website,, in a hypothetical about professional photographers. AshleyMadison, of course holds itself out as a meeting place for customers seeking to have extramarital affairs. Alito opened with, “JDate … is a dating service, I gather for Jewish people… Maybe Justice Kagan will also be familiar with the next website I’m going to mention, AshleyMadison.Com…” “I’m not suggesting,” Alito chuckled. “She knows a lot of things.”

What Lithwick deceptively omits here is that Kagan evoked laughter, right after Alito said that JDate is “a dating service, I gather, for Jewish people,” by interjecting “It is.” (Transcript 74:4.) Alito simply returned the banter with Kagan as he moved onto his AshleyMadison hypothetical.

Lithwick’s assertion that “Alito chuckled” gives the impression that he was insinuating that Kagan might have some undue familiarity with an Internet site for people seeking to have extramarital affairs. I didn’t hear any chuckle, and it’s farfetched that Alito would make such an insinuation. Indeed, he seems embarrassed from the audience laughter that anyone might have thought he was doing so: “I’m not suggesting that. I mean, she knows a lot of things. I’m not suggesting — okay.”

303 Creative is a serious case that the justices addressed seriously at oral argument. The only real mocking is by Lithwick, of Slate’s readers who have misplaced their trust in her.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

Photo by Claire Anderson on Unsplash

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