A hit job on Justice Alito’s wife not only misses the mark, it misrepresents the justice’s record.
A hit job on Justice Alito’s wife not only misses the mark, it misrepresents the justice’s record.
I t’s Supreme Court decision season, so that means it’s also silly season for media-activist hit jobs on the conservative justices. There are two transparent purposes of these: to intimidate the justices into trimming their sails for fear of more criticism, and (when that fails) to delegitimize their decisions and lay the groundwork for radical changes to destroy the Court in its longstanding form. This has all been part of an ongoing campaign for years now. This time, the target is Justice Samuel Alito — or, really, his wife.
One of the recurring players in the anti-Court campaign is Jodi Kantor of the New York Times, a pro-Roe writer and Slate alum previously seen feeding the narratives of left-wing law professors, including Slate’s Leah Litman. Kantor’s latest is entitled “At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display,” as if it was reporting on a current event rather than a dispute among neighbors that happened three and a half years ago but is being surfaced now only because, as Kantor admits, “in coming weeks, the justices will rule on two climactic cases involving the storming of the Capitol on Jan. 6, including whether Mr. Trump has immunity for his actions.” One of these, of course, is a statutory-interpretation case, and the other involves a long-term legal principle in a case where neither Alito nor anybody else on the Court expressed any sympathy for Donald Trump’s conduct.
Mrs. Alito’s Flag
The entire story boils down to this: Some neighbors spotted and photographed an upside-down flag flying at the Alito home on January 17, 2021, and it may have been up on other days around that period. “The exact duration that the flag flew outside the Alito residence is unclear.” The upside-down flag, a symbol appropriated by different protest groups over time, was being used at the time by Trump supporters convinced that the 2020 election had been stolen.
Justice Alito sent an emailed response to the Times, saying that “I had no involvement whatsoever in the flying of the flag” and “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” (Kantor doesn’t say whether this was the entire contents of Alito’s email.) Kantor doesn’t cite anything to contradict that account; indeed, her report (to which the Times apparently assigned three reporters) notes that “interviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn” and that “around the 2020 election, a family on the block displayed an anti-Trump sign with an expletive. It apparently offended Mrs. Alito and led to an escalating clash between her and the family, according to interviews.” That’s it.
Justice Alito spoke with Shannon Bream of Fox News to elaborate. Bream’s summary on Twitter:
I spoke directly with Justice Alito about the flag story in the NYT. In addition to what’s in the story, he told me a neighbor on their street had a “F*** Trump” sign that was within 50 feet of where children await the school bus in Jan 21. Mrs. Alito brought this up with the neighbor. According to Justice Alito, things escalated and the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks.
Justice Alito says he and his wife were walking in the neighborhood and there were words between Mrs. Alito and a male at the home with the sign. Alito says the man engaged in vulgar language, “including the c-word.” Following that exchange, Mrs. Alito was distraught and hung the flag upside down “for a short time.” Justice Alito says some neighbors on his street are “very political” and acknowledges it was a very heated time in January 2021.
It’s no surprise that political tensions were running hot by January 2021 in the sorts of tony Northern Virginia neighborhoods where lots of people work in politics and government. Now, we can freely acknowledge that this response to profane provocation and personal invective is disrespectful to the flag and a display of injudicious temperament on the part of Mrs. Alito, but then, Mrs. Alito is not a judge or the holder of any political office whatsoever. (It would not be the first time she has reacted emotionally to the sort of abuse that surrounds her husband; she left in tears from one of his Senate confirmation hearings in 2006 when Ted Kennedy and Patrick Leahy accused Alito of bigotry by association to some Princeton groups.)
Kantor gussies up the rest of the article with quotes from Supreme Court guidelines about the conduct of “employees” of the Court (none of which mention the spouses of employees) and quotes from “judicial experts.” These turn out to be Amanda Frost of the University of Virginia, a regularly quoted participant in the “ethics” campaign against the Court, and Jeremy Fogel of Berkeley, a former Bill Clinton appointee to the federal bench.
Just last month, Fogel was on CNN decrying efforts to “delegitimize the judiciary,” which he says “incites violence” — but he said so to defend Acting Justice Juan Merchan in gagging Donald Trump from criticizing the fact that Merchan’s daughter is a political operative who has worked for Trump’s current election opponents. Then, he said of referring to the professional, full-time political activity of a judge’s family member, “On a political level it’s not so much desperate as it is kind of what we’re getting used to, which is an attempt to tear down the legitimacy of the judges who preside over these cases.” Now, Fogel tells Kantor, “You always want to be proactive about the appearance of impartiality. . . . It really is a question of appearances and the potential impact on public confidence in the court. I think it would be better for the court if he weren’t involved in cases arising from the 2020 election.”
Pennsylvania Follies
What exactly is the argument from Kantor that Alito was some sort of “Stop the Steal” partisan? Kantor says that, in late January 2021, “The court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision.” This is highly misleading. First of all, after January 6, Joe Biden’s election had been certified, and even Donald Trump was sullenly accepting his fate and packing boxes headed for Florida. It was over. On January 7, Trump publicly conceded that “a new administration will be inaugurated on January 20. My focus now turns to ensuring a smooth, orderly and seamless transition of power.”
The case that Kantor references involved a pair of appeals from the Democrat-majority Pennsylvania Supreme Court’s rogue, lawless decision in mid September 2020 to throw out the state’s statutory deadline for the submission of mail-in ballots, based on the then-popular Democratic conspiracy theory that Trump was using the Postal Service to steal the election by delaying mailed ballots.
The Court — improperly in my view, and in the view of Justices Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh — declined to stay that ruling before Election Day. (Justice Amy Coney Barrett, having joined the Court too late, wasn’t involved in that decision, so the Court split 4-4). At the time, Alito warned:
The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems. . . . It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election. That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.
That’s not “Stop the Steal” conspiracy stuff, it’s an open legal dispute about whether ballots submitted after the statutory deadline should be counted. Alito was trying to prevent a post-election dispute. He invited the Pennsylvania Republicans to move for a targeted order to segregate the late ballots in order to ensure that the Court could, if it chose to, review their legality after the election. Three days after the election, Alito (who is the circuit justice for the Third Circuit, which includes Pennsylvania) issued an emergency order:
All county boards of election are hereby ordered, pending further order of the Court, to comply with the following guidance provided by the Secretary of the Commonwealth on October 28 and November 1, namely, (1) that all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept “in a secure, safe and sealed container separate from other voted ballots,” and (2) that all such ballots, if counted, be counted separately. . . . Until today, this Court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified. The application received today also informs the Court that neither the applicant nor the Secretary has been able to verify that all boards are complying with the Secretary’s guidance, which, it is alleged, is not legally binding on them. I am immediately referring this application to the Conference and direct that any response be filed as soon as possible but in any event no later than 2 p.m. tomorrow, November 7, 2020.
That preserved the status quo. And it was a legitimate legal question — but, as it turned out, one that involved too few ballots to change the outcome of the presidential election in Pennsylvania, which Biden won by more than 82,000 votes. That’s why no court was willing to credit the “Stop the Steal” lawsuits in Pennsylvania even in spite of clear evidence of a few thousand votes that should not have been counted.
In December 2020, allies of Trump filed Texas v. Pennsylvania, a lawsuit invoking the Court’s original jurisdiction, seeking to invalidate the Biden electors in Pennsylvania, Georgia, Michigan, and Wisconsin. The case was, as I noted at the time, bogus, and none of the justices expressed the slightest interest in ruling in favor of Trump’s cause. The Court dismissed it for lack of Article III standing. Alito, joined by Thomas, dissented in part, but only on the ground that the Court has no choice but to exercise original jurisdiction to allow the filing of a complaint by a state against another state (Article III creates this jurisdiction explicitly). Alito wrote, citing an opinion by Thomas from a prior case not involving the election: “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. . . . I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.” (Emphasis added.)
The Pennsylvania case remained alive after January 6 because the late ballots, still segregated per Alito’s order, had the potential to affect the outcome of elections other than the presidential election. The Court ended up considering the petition to take the case at four weekly conferences between January 8 and February 19 before finally denying the petition, a month after Biden had been sworn in as president. Thomas, Alito, and Gorsuch all dissented, with Thomas and Alito writing separate dissents. Neither of them said anything to suggest that the Court’s decision would have changed the outcome of the 2020 election (indeed, while the three dissented from the denial of certiorari, none of them dissented from the dismissal of the Trump campaign’s petition to intervene in the case as moot). Thomas, noting the crucial importance of confidence in our electoral system, worried that “unclear rules threaten to undermine this system . . . with more than one system of rules in place, competing candidates might each declare victory under different sets of rules.” But he also observed:
That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. . . .
We are fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots does not appear to have changed the outcome in any federal election. This Court ordered the county boards to segregate ballots received later than the deadline set by the legislature. . . . And none of the parties contend that those ballots made an outcome-determinative difference in any relevant federal election. But we may not be so lucky in the future.
Alito sounded similar notes:
Now, the election is over, and there is no reason for refusing to decide the important question that these cases pose. . . . A decision in these cases would not have any implications regarding the 2020 election. (Because Pennsylvania election officials were ordered to separate mailed ballots received after the statutory deadline . . . we know that the State Supreme Court’s decision had no effect on the outcome of any election for federal office in Pennsylvania.) But a decision would provide invaluable guidance for future elections.
In short: Neither Alito nor 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. By mid January, three things were true and publicly known: Alito had ruled against any relief for the Trump campaign in Texas v. Pennsylvania, Trump’s legal challenges were effectively dead, and Alito’s own November 6 order had ensured that everyone could see that the one remaining legal issue in Pennsylvania involved too few votes to change the outcome. Alito and Thomas both publicly emphasized that fact when they dissented from the denial of certiorari. Kantor and the Times disserve their readers by suggesting anything to the contrary.