After attorney Kristen Waggoner presented her arguments in favor of the designer, Justice Ketanji Brown Jackson posed a hypothetical question of whether a photographer would be able to refuse to take photos of a white Santa Claus with Black children. Waggoner said the photographer could object to taking the photos.
Justice Alito then tried to flip Jackson’s analogy, asking if a Black Santa had to take pictures with a child dressed in a KKK robe. Colorado Solicitor General Eric Olson immediately shut down the notion, noting that “Ku Klux Klan outfits are not protected characteristics under public accommodation laws.”
Justice Sonia Sotomayor chimed in, saying “presumedly, that would be the same Ku Klux Klan outfit regardless whether if the child was Black or white or any other characteristic.”
Alito then cracked the joke: “You do see a lot of Black children in Ku Klux Klan outfits all the time.”
The justice, who wrote the majority opinion that reversed the court's landmark ruling in Roe v. Wade earlier this year, continued making jokes during Monday's oral arguments as he also suggested that Justice Elena Kagan was familiar with Ashley Madison, a dating site for people looking to have affairs.
Many Twitter users slammed Alito's wisecracks.
"This argument….follow @mjs_DC and @chrisgeidner for a live tweet. I’m listening but this is 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," one tweet reads.
"Oral arg in #303Creative: Justice Alito is resorting to KKK jokes. Ha ha ha. As if what's at stake here is funny, and isn't taking place in a context in which LGBTQ people feel like we have a target on our backs. And, ahem - Klan jokes aren't funny under any context," another Twitter user wrote.
See more reactions to Justice Alito's joke below.