All three pillars of the Alito flag stories have fallen apart. That leaves the justice’s critics to raise the rhetorical temperature in lieu of fact and reason.
All three pillars of the Alito flag stories have fallen apart. That leaves the justice’s critics to raise the rhetorical temperature in lieu of fact and reason.
F or all the resources the New York Times has devoted to throwing four reporters into investigating what flags have flown at the home and beach house of Justice Samuel Alito, the desperate sleight of hand in the stories has become all the more apparent. As presented by the Times, the stories have three basic themes:
- Justice Alito was responsible for the flying of the flags, and therefore his conduct raised questions under the recusal rules about his impartiality.
- The two flags at issue — an upside-down American flag and the “Appeal to Heaven” or Pine Tree flag — are commonly identified as symbols of the “stop the steal” movement.
- The flying of the first flag around January 17, 2021, coincided with Alito participating in cases where he sided with Trump’s effort to overturn the election.
The third of these themes collapsed upon immediate scrutiny: As I noted in response to the first of the three Times “news” stories on this issue:
Neither Alito nor [Justice Clarence] Thomas nor any other justice ever ruled with the slightest sympathy for Donald Trump’s conspiracy theories, and the Court had no cases before it by January 17, 2021, that would alter the outcome. . . . Alito’s own November 6[, 2020,] order had ensured that everyone could see that the one remaining legal issue . . . involved too few votes to change the outcome. Alito and Thomas both publicly emphasized that fact when they dissented from the denial of certiorari.
The other two themes have been progressively weakened by further reporting, even in the additional stories by the Times.
Lady Justice
On the flying of an upside-down flag at his Virginia home in January 2021, Alito has been consistent from the outset that this was his wife’s decision, not his, and that it arose out of a dispute with neighbors. He reiterated that in a letter on Wednesday to Senators Dick Durbin and Sheldon Whitehouse. Every single thing reported since the original Times story has confirmed his account.
The Washington Post reported on Saturday that Robert Barnes, then the Post’s longtime Supreme Court reporter, witnessed a confrontation around Alito’s Virginia house in January 2021, and the paper “decided not to report on the episode at the time because the flag-raising appeared to be the work of Martha-Ann Alito, rather than the justice, and connected to a dispute with her neighbors.” That was consistent with Post reporting after the Times story that “neighbors and acquaintances of Martha-Ann Alito said they have never heard her espouse election disinformation or support for the Jan. 6 attack. But they also said the flag was displayed on the front lawn of the Alitos’ Fairfax County, Va., home soon after a dispute that appeared to have political dimensions.” Even Stephen Gillers, a reliably liberal ethics professor at NYU law school, told the Post, “I don’t think such an objective observer would question Alito’s impartiality based on this incident…I find it impossible to believe that Alito knew the flag was flying upside down or, if he did know, that he knew the relationship to ‘Stop the Steal.’ I don’t believe he would have allowed this to happen otherwise.”
As the Post explained what Barnes saw:
On Jan. 20, 2021 — the day of Biden’s inauguration, which the Alitos did not attend — Barnes went to their home to follow up on the tip about the flag. He encountered the couple coming out of the house. Martha-Ann Alito was visibly upset by his presence, demanding that he “get off my property.” As he described the information he was seeking, she yelled, “It’s an international signal of distress!”
Alito intervened and directed his wife into a car parked in their driveway, where they had been headed on their way out of the neighborhood. The justice denied the flag was hung upside down as a political protest, saying it stemmed from a neighborhood dispute and indicating that his wife had raised it.
Martha-Ann Alito then got out of the car and shouted in apparent reference to the neighbors: “Ask them what they did!” She said yard signs about the couple had been placed in the neighborhood. After getting back in the car, she exited again and then brought out from their residence a novelty flag, the type that would typically decorate a garden. She hoisted it up the flagpole. “There! Is that better?” she yelled.
In Barnes’s telling, we see rather clearly that Mrs. Alito was emotional and agitated and wrapped up in a dispute with neighbors, and that Justice Alito was doing his best to calm the situation — indeed, that he was acting with everything you would want in a man of judicial temperament. He responded at the time to a written Post inquiry almost exactly as he did to the Times three years later.
Former federal judge Nancy Gertner told the Post that if her husband (then with the ACLU) had made political displays while she was on the bench, “One of two things would have happened: A) a divorce and B) surely recusal.” Gertner could say that because, frankly, she’s the wife in that marriage. Alito is the husband. We expect men to weather the storm when their wives are angry. It’s part of the job.
Tuesday’s Times story details in many ways large and small that Justice Alito was being truthful when he said in 2021 and again in 2024 that the upside-down flag was raised by his wife, not by him. As Noah Rothman details, when you set it in chronological order and sweep away the efforts by the Times crew at misdirection, that story starts with neighbors getting progressively more politically wound-up during the Covid lockdowns, and concludes with them calling Mrs. Alito a “c***,” calling the cops on her for no good reason, and then painting themselves as the victims.
In Alito’s letter to Durbin and Whitehouse, he is obviously irritated at being compelled to get into this in public, and betrays a certain amount of irritation at his wife for getting him into this mess:
I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused. My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.
That is unmistakably the voice of a man who has been married for 40 years and knows when he can’t win an argument with his wife. He leaps to her defense shortly thereafter, however, noting that Mrs. Alito “has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.”
The entirely undisputed factual record, confirmed by everybody to report on this kerfuffle, leaves Alito’s critics without a leg to stand on. They have been unable to keep their own stories straight. When the original story broke, Jonathan Chait bellowed:
The whole defense revolves around the notion that Alito’s wife is entirely responsible for the flag and that her conduct in no way reflects upon him. National Review’s Dan McLaughlin has a column accepting this argument at face value, dedicated mostly to questioning the motives of the reporters and ethics experts who do not accept the wife explanation at face value.
Not one sentence later, however, Chait conceded, “There’s no reason to doubt Alito’s claim that his wife placed the flag in front of their home.” Yet, having conceded the entire premise, Chait nevertheless went on to describe Mrs. Alito’s conduct as “Alito’s coup endorsement.” Joe Patrice of Above the Law snarked, “Obviously the job of hoisting the flag at the Alito home belongs to Mrs. Alito, a law librarian by training, and not Sam, A FORMER CAPTAIN IN THE U.S. ARMY. Specifically, a Captain in the Signal Corps . . . the flag symbol people.” Elie Mystal told his MSNBC audience, “I am a Black man on television. When I go out on the street, I’ve got some neighbors who have some things to say to me, all right? I’m really sorry if Samuel Alito and his wife had a bad walk around the neighborhood, but that’s just part of the society we live in.” As if this somehow shows that Alito was the one responsible for the flag.
After the Appeal to Heaven flag story broke, Chait took a premature victory lap in declaring the defeat of the very thing he’d already conceded: “Alito Ethics Defense Blown Up by Second Insurrectionist Flag: The previous defense was narrowly tailored to facts that are now moot. . . . The wife excuse is also threadbare. (Indeed, Alito, who blamed his wife in a response to the first Times story, has no comment in response to the second one.)” Of course, there was nothing in the second story to suggest who flew that flag, and Justice Alito’s letter to Durbin and Whitehouse explained:
My wife did fly that flag for some period of time, but I do not remember how long it flew. And what is most relevant here, I had no involvement in the decision to fly that flag. My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years. In addition to the American flag, she has flown other patriotic flags (including a favorite flag thanking veterans), college flags, flags supporting sports teams, state and local flags, flags of nations from which the ancestors of family members came, flags of places we have visited, seasonal flags, and religious flags. I was not familiar with the “Appeal to Heaven” flag when my wife flew it. . . . My wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so. Our vacation home was purchased with money she inherited from her parents and is titled in her name.
Given that the Times relied entirely on grainy photos and Google Street views to report on the Appeal to Heaven flag, there’s no basis to question this.
In and of itself, all of this entirely demolishes the insistent, partisan demands from Democratic politicians for Alito to recuse from January 6–related cases. The Court’s longstanding recusal standard, which is now embodied in its own Code of Conduct, obliges the justices to stay on a case unless recusal is absolutely required, and demands recusal only when a “reasonable observer” would believe that there’s an appearance of partiality after being accurately “informed of all the surrounding facts and circumstances” — not just what might be speculated or misunderstood.
To offer a current contrast, Wisconsin Democrats (including governor Tony Evers) are presently arguing that judge Jacob Frost (an Evers appointee) is not required to recuse from a lawsuit challenging Act 10 (the Scott Walker–backed rule eliminating mandatory public-employee union dues) by the fact that Judge Frost previously signed a petition demanding that Walker be recalled from office for enacting Act 10. As John McCormack, Charles Hilu, and Michael Warren at the Dispatch have reported, Democratic senators pressuring Alito also made no effort to demand recusal by then-Justice Ruth Bader Ginsburg from Trump-related cases when she spoke out directly and personally against Donald Trump.
False Flag
The final remaining theme of the Times coverage is that the two flags at issue — the upside-down flag and the Appeal to Heaven flag — are unambiguous symbols identified with the “stop the steal” movement. But that’s wrong, too. Sure, the fanatics used both symbols, among many others. But you have people like George Conway claiming that these flags were identified with “stop the steal” in the same way that the swastika represents Nazi Germany, thus overriding all of its prior meanings.
That’s utter nonsense, and historical ignorance to boot. The swastika flew for twelve years as the official flag of a major nation engaged in a colossal world war and a historic genocide. The January 6 riot, which lasted a single afternoon, featured a profusion of flags and symbols, including Trump 2020 flags, the Confederate flag, the Gadsden flag, a variety of religious and local flags, and — most prominently by far — the American flag itself. Until the past two weeks, no reasonable person would have claimed that these two particular symbols are synonymous with that movement. I detailed this previously regarding the upside-down flag, which is formally a symbol of distress and has been appropriated over the years by multiple different political-protest movements.
What about the Appeal to Heaven flag? Alito insisted in his letter:
I was not familiar with the “Appeal to Heaven” flag when my wife flew it. She may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the “Stop the Steal Movement,” and neither was my wife. She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.
Was he overlooking an identification as obvious as the identity of the swastika with the Nazis? If so, he was hardly alone. The flag, personally approved by George Washington in 1775, previously had a rich history, including appearing on a postage stamp in 1968 and in the opening credits of HBO’s John Adams. That didn’t change after January 6. Until Saturday, it had flown at San Francisco’s city hall without controversy continuously since 1964.
If it was as notorious as the swastika, even the unadorned Pine Tree Flag without the John Locke slogan “an appeal to heaven” would now be radioactive. But it’s not. Massachusetts law still designates it as the official “naval and maritime ensign” of the state. A New Hampshire commemoration of the 1772 Pine Tree Riot still hoists it annually. In Maine, a proposal to restore the pine-tree symbol as the state flag (a status it held from 1901 to 1909) passed both houses of the Democrat-controlled state legislature in 2023, with press reports not even mentioning a January 6 connection and the only controversy being whether the flag correctly depicted a pine tree (you can even buy a gay pride flag with the pine-tree design). A Maine Public Radio story on May 17, 2024 — the day after the Times story broke — described a ballot referendum on restoring the Pine Tree Flag with no mention of any January 6 connection, observing that proponents argue “that the immense popularity of the Pine Tree Flag among Maine residents (and tourists) suggests people are ready for a change.”
This whole thing is redolent of the 2008 “Obama terrorist fist bump” story in its insistence on an obscure claim of deep conspiratorial symbolism unfamiliar to the general public.
Flooding the Zone to Obscure the Facts
With all three pillars of its story having collapsed, the Times and its allies have flooded the zone with op-eds, all of which leap straight over the actual facts to their conclusions. Judge Michael Ponsor, for example, goes right into a discussion of the flying (passive-tense) of controversial flags, then later throws in a to-be-sure note that “assuming it is true that it was Justice Alito’s wife who raised the inverted American flag, apparently in response to some provocative behavior from a neighbor, I do sympathize.” Both that, and what the symbol meant, are rather crucial facts here.
Jennifer Weiner compares Alito to corrupt senator Bob Menendez for a “blame the wife defense,” as if there’s something improper about Alito telling the truth about what happened. Never mind that in the same breath, the critics bash Alito for not denouncing what his wife did. Yet, even she notes as some sort of deep secret the thing that conservatives have no problem grasping: “When a Supreme Court justice blames his wife, he is also acknowledging that his wife has the ability to act on her own ideas, has a mind confoundingly of her own.” Um, yes?
Then there’s Jesse Wegman of the Times editorial board, who recites two claims that Kantor and her team (the story’s original authors) misrepresented (as I’ve detailed before) — that the upside-down flag was a well-known symbol of “stop the steal,” and that Alito voted to challenge the outcome of the 2020 presidential election:
The flag, a clear pro-Trump statement widely flown by those who believed the 2020 election was stolen, apparently stayed up for days, even as the court was weighing whether to hear a case challenging the outcome of the election. (The court voted not to hear the case. Justice Alito, like Mr. Trump, was on the losing side.)
(This, when Wegman isn’t accusing Justice Thomas of loving his wife too much.)
Along the way, Wegman throws in the comparison that “in 1969, Justice Abe Fortas resigned his seat for accepting a $20,000 consulting fee (which he returned) from a foundation led by a man who was convicted of securities fraud.” This is not the first time the Times has printed an egregious whitewash of what Fortas actually did, which involved not only his scheme with the securities fraudster but also actively advising then-president Lyndon Johnson and leaking to Johnson information about the Court’s deliberations.
Just yesterday, Representative Jamie Raskin wrote in the Times to demand recusal by Alito and Thomas. He fell back upon the passive voice: “Above the Virginia home of Justice Alito and his wife, Martha-Ann Alito, flew an upside-down American flag — a strong political statement among the people who stormed the Capitol. Above the Alitos’ beach home in New Jersey flew another flag that has been adopted by groups opposed to President Biden.”
Any sensible person can see this for what it is: a sad, desperate bit of agitprop that aims to win with mere repetition what it lacks in fact and reason.