Justice Samuel Alito made an apparent joke on Monday about “Black children in Ku Klux Klan outfits” during Supreme Court oral arguments on a case involving a Colorado web designer who did not want to provider her services for same-sex weddings on religious and free speech grounds.  

During the arguments, Alito sought to make a point about who could argue they should not have to provide a service under a Colorado anti-discrimination law by discussing a Black Santa Claus at a shopping mall.   

Alito, a conservative justice who authored the summer ruling overturning the Roe v. Wade decision, asked if that Santa would be required to take a picture with a child dressed up in a Ku Klux Klan outfit under the Colorado law in question. 

He did so after Justice Ketanji Brown Jackson raised the question of whether it would be permissible for a Santa at a mall to refuse to take pictures with children who are not white.  

“So if there’s a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that Black Santa has to do that?” Alito asked Eric Olson, Colorado’s solicitor general, who was defending the state law at issue in the case. 

“No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws,” Olson responded. 

Justice Elena Kagan, one of the court’s liberals, then asked, “And, presumably, that would be the same Ku Klux Klan outfit regardless of whether the child was Black or white or any other characteristic?” 

Alito then cut in to say, “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time. All the time.”  

In audio from C-SPAN, laughter can be heard before Kagan asks if she can proceed with her line of questioning.

Sherrilyn Ifill, former president and director council for the NAACP’s Legal Defense Fund, tweeted Monday afternoon that the comments were “really upsetting.”

“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,” Ifill said.

Earlier in the proceedings, Alito implied that Kagan was familiar with a dating website designed for people who wish to have affairs.  

Alito asked Olson if under the Colorado law, an unmarried Jewish person who wanted a Jewish photographer to take a photograph for the website Jdate would be required to do so.  

“Jdate … is a dating service, I gather, for Jewish people,” Alito said. 

Kagan, who is Jewish, jumped in to say, “It is.”  

Alito then responded, “Maybe Justice Kagan will also be familiar with the next website I’m going to mention. … Next, the Jewish person asks the Jewish photographer to take a photograph for his AshleyMadison.com dating profile.” 

Alito said he wasn’t suggesting Kagan knew the website.  

“I’m not suggesting — I mean, she knows a lot of things. I’m not suggesting — OK, does he have to do it?” 

After a slight pause, Olson said, “It depends.” 

“What Colorado looks to is what services the photographer makes available to the public, and if the photographer makes that service available to others, taking pictures for use on websites, then probably yes, but it depends,” said Olson.