On Justice Alito, Mrs. Alito, And ‘Flag-gate’

Check out the UPDATES—Justice Alito rejected the recusal requests.

The Appeal to Heaven aka Pine Tree flag (public domain photo by Joseph Reed).

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As I briefly alluded to in my most recent Judicial Notice news roundup, there’s a sequel to Flag-gate, the controversy over the flying of an upside-down American flag above the Virginia home of Justice Samuel Alito and his wife, Martha-Ann Alito.¹ Writing in The New York Times, Jodi Kantor, Aric Toler, and Julie Tate broke the news of the latest “vexing vexillology,” to use the words of the Wall Street Journal editorial board (“vexillology” is the study of flags).

In July and September 2023, two and a half years after the upside-down flag was flown at the Alito family’s primary residence, the “Appeal to Heaven” or “Pine Tree” flag was hoisted aloft at their vacation house in Long Beach Island, New Jersey. According to the Times, this flag “dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the ‘Stop the Steal’ campaign, and for a push to remake American government in Christian terms.”

A picture in the Times article shows that the Appeal to Heaven flag wasn’t flown by itself. Rather, it was one of three flags, flown alongside a Phillies flag and a Long Beach Island flag (which perhaps diminishes the significance of any individual flag, since flying one flag alone would send more of a message).

We also have new facts about the initial controversy involving the upside-down flag, from a fascinating Washington Post piece by Justin Jouvenal and Ann Marimow that paints a vivid scene:

On Jan. 20, 2021—the day of Biden’s inauguration, which the Alitos did not attend—[then-Supreme Court correspondent Robert] Barnes went to their home to follow up on [a news] 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.

Later that week, Samuel Alito issued a statement to The Post in response to written questions about whether it was his decision to fly the flag and whether it was flown to protest the election results, reflect concern about the state of the country or something else.

“I had no involvement whatsoever in the flying of the flag,” he said, using wording almost identical to the statement provided to the Times last week. “It was placed by Mrs. Alito solely in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

In light of all this, The Post did not report on the incident 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.” This is a helpful fact for defenders of the Alitos because, as lawyer and legal blogger Henry Wray put it, “The Washington Post investigated this episode at the time and determined it to be a nothingburger.”

In the wake of the news about the Appeal to Heaven flag at the Alito beach house, two members of the Senate Judiciary Committee, Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), wrote a letter to Chief Justice John Roberts. They urged him “to immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6th attack on the Capitol.” But I agree with Dahlia Lithwick of Slate, who predicts that Justice Alito won’t recuse of his own accord, and Chief Justice Roberts won’t pressure him to do so.

Sitting on the sidelines, what should we make of this controversy? Judge Michael Ponsor (D. Mass.)—who has a new novel out, Point of Order, that I’m looking forward to reading—wrote a New York Times guest essay, “How Could Alito Have Been So Foolish?” Judge Ponsor argued that “any judge with reasonable ethical instincts would have realized immediately that flying the [upside-down] flag then and in that way was improper. And dumb.” He added that the same thing is true of the Appeal to Heaven flag, which “is viewed by a great many people as a banner of allegiance on partisan issues that are or could be before the Court.”

I agree with Judge Ponsor on the sheer stupidity of a judge or justice flying flags to show support for Stop the Steal. But could this cut the other way? Consider this from Henry Wray:

Assume that you are a judge on a court whose credibility and legitimacy are under constant political attack and whose members are accused of bias and partisan hackery at the slightest provocation. Assume further that you understand the inverted American flag and the “Appeal to Heaven” flag to symbolize support for Trump’s “Stop the Steal” campaign and the January 6 attack on the Capitol….

Given these assumptions, would you publicly display the two flags, thereby giving your critics a silver platter full of grist to use in their efforts to undermine you and your court?

Wray suggests it’s “far more plausible” to conclude that “neither Justice Alito nor his wife associated the inverted flag with Trump at the time.”

Here’s my personal view—which will probably tick off both liberal and conservative readers, but it wouldn’t be the first time. As Jonah Goldberg wrote at The Dispatch, in an essay titled “Flag-Gate and Other ‘Moral Panics,’” “I don’t think there are enough facts to support sweeping conclusions one way or another.”

Here are some things I’d like to know before concluding that Justice Alito violated ethics rules or that he must recuse from January 6-related cases.

1. What was Justice Alito’s precise involvement in—and knowledge about—the flying of these flags?

Justice Alito told The Times and The Post that he “had no involvement whatsoever in the flying of the [upside-down] flag.” As for the Pine Tree flag, he hasn’t commented at all on it. He also hasn’t made clear, as to either flag, whether and when he knew the flags would be flown—i.e., did he know before or after they went up—or whether he acquiesced in their flying—even if it was originally Martha-Ann Alito’s idea.

On Amarica’s Constitution, Professor Akhil Amar argued that in today’s society, we need to recognize that justices and their spouses (like all other couples) are independent people with independent views—in contrast to before, say, passage of the Nineteenth Amendment, when husband-and-wife was a single political entity. So according to Professor Amar, if Martha-Ann Alito flew these flags, that was her business. It shouldn’t be automatically imputed to Justice Alito, especially since he has publicly denied involvement in flying the upside-down flag.

Similarly, at The Federalist, Margot Cleveland observed that the Code of Judicial Ethics specifically provides that it “does not govern the conduct of a judge’s spouse.” And although a judge has a duty, “to the extent possible, [to] disassociate himself or herself from the spouse’s political involvement,” Justice Alito arguably did that here, declaring his lack of involvement in flying the upside-down flag (although he hasn’t commented on the Pine Tree flag).

Of course, many of Justice Alito’s critics would reject the notion that his denials of involvement to newspapers should be accepted at face value. They might want, at the very least, some kind of sworn statement or testimony—perhaps testimony before the Senate Judiciary Committee. But that’s clearly not happening.

2. What did Mrs. Alito and/or Justice Alito know about the meaning of these flags at the time that they flew them?

The Times articles strongly push the narrative that the upside-down and Pine Tree flags are symbols of Stop the Steal. But as critics of the Times coverage have argued over the past two weeks, both flags have multiple meanings.

As Mrs. Alito told Robert Barnes of the Post, the upside-down flag is “an international signal of distress.” As for the Appeal to Heaven or Pine Tree flag, Kimberley Strassel of the Wall Street Journal pointed out that it is a “longtime symbol of independence,” was designed by George Washington’s secretary, was flown on ships commissioned by Washington, has been flown over multiple state capitols, and is the official maritime flag of Massachusetts. She added, “Dozens of historic flags were toted to the Capitol on January 6, as were copies of the Constitution and pictures of the American eagle. Are they all now symbols of ‘insurrection’?” Indeed, as suggested by photos, the most common flag carried at January 6 was probably the American flag, right-side up—and few people in the United States, with the possible exception of certain professors, argue that it’s a symbol of evil (yet).

On Advisory Opinions last Thursday, David French argued that the Alito family flying not one but two flags with possible January 6 ties suggests that this was no coincidence. Similarly, Professor Stephen Gillers told the Washington Post that although he initially gave Alito the benefit of the doubt that the upside-down flag was not tied to Stop the Steal, the second flag “makes that theory no longer plausible.”

But I’m not so sure. Consider the timing: these flags were not flown simultaneously or even in close temporal proximity to each other. The upside-down flag was flown in January 2021, and the Appeal to Heaven flag was flown in July and September 2023, some two and a half years later. And only the upside-down flag was flown around the time of the January 6 attack on the Capitol. The fact that we learned about the flags in close temporal proximity could be tainting our evaluation of the situation.

So the question remains: at the time that they flew these flags, were the Alitos aware that some people associate them with January 6 or Stop the Steal? What exactly did they know about the meaning of these flags, and when did they know it?

3. Why did Mrs. Alito and/or Justice Alito fly these flags, i.e., what was the intended message?

Intent is a separate issue from knowledge. It’s possible that even if one or both of the Alitos knew the flags had some association with January 6 or Stop the Steal, they didn’t intend to express support for January 6 or Stop the Steal in flying them. For example, the Alitos’ intent might have been to respond to or troll the neighbors they were fighting with over politics.

As I previously wrote, imagining Martha-Ann Alito flying the flag as a sarcastic rejoinder to the neighbors blaming her for January 6:

To me, this whole incident sounds like… a Curb Your Enthusiasm episode? I can imagine Martha-Ann Alito obsessing over the hostile neighbor and the shouting match, venting to her husband while he pretends to listen and occasionally nods—when all he wants to do is sit in his armchair and read briefs. And I can envision the moment when she hits upon the brilliant idea of flying an upside-down flag as a metaphorical middle finger to the neighbor.

“She blames me for the attack on the Capitol? Okay then, how about I ‘fess up’? What if I fly an upside-down flag in front of our house, like what I saw on the news when those guys stormed the Capitol? I bet she’ll love seeing that—every single morning, when she goes past our house. Sam, whaddya think?”

“Mmm-hmm, honey,” says Justice Alito, not bothering to look up from his reading. “Sounds good to me.”

It’s worth noting that unlike Justice Clarence Thomas’s wife, Ginni Thomas, Martha-Ann Alito is not known to have been involved in Donald Trump’s efforts to overturn the 2020 presidential election. In other words, we have no additional evidence—besides the flags, which are equivocal—to support claims that Mrs. Alito is an election denier.

To sum up, there are multiple off-ramps here: Justice Alito wasn’t personally involved, the Alitos didn’t know the flags had ties to January 6 or Stop the Steal, or the Alitos didn’t fly the flags with any improper intent. I therefore think it’s more likely than not that there’s no ethical violation here, and the justice shouldn’t recuse.

At the same time, I wish we had much more information than we currently do about the underlying facts. Unlike some of Justice Alito’s defenders, I can imagine a specific set of contextual facts that would give rise to an ethical violation and require recusal.

If the relevant facts are exculpatory for Justice Alito, I wouldn’t be shocked to see him share them with the public. Other justices might see that as unwise, simply giving more oxygen to this controversy. But the in-your-face Justice Alito—whom I previously dubbed “The Real Justice of New Jersey”—sometimes seems to relish the culture-war combat. Maybe he’ll write another Wall Street Journal op-ed or have another sit-down with the WSJ editorial page to push back against his critics.

Readers, what do you think? I’m designating this post a Notice and Comment—in which comments are open to all readers, not just paid subscribers—and I look forward to your thoughts.

UPDATES:

• 5/29/2024, 1:28 a.m.: One thing I should clarify: I don't think these flags should have been flown, and there are plenty of negative adjectives I would apply, such as bad, imprudent, inappropriate, and ill-advised. But whether Justice Alito (1) violated any ethical rules and (2) must now recuse from January 6-related cases are separate questions.

• 5/29/2024, 1:34 a.m.: In a new Times piece, Jodi Kantor offers additional details about the dispute between the Alitos and their neighbors, Emily Baden and her husband (who agreed to speak to the Times only on the condition of anonymity). There are some divergences from what has been previously reported, but I agree with Professor Josh Blackman that nothing major has changed in terms of the underlying facts—i.e., if you were with or against Justice Alito before this article, there’s nothing here that will make you change your position.

• 5/29/2024, 2:08 p.m.: Justice Alito just responded to the recusal calls from Senators Durbin and Whitehouse, stating that he is “duty-bound to reject your recusal request.” His letter provides a lot of the information that I said would be helpful to have for evaluating this situation.

1. Another piece of fallout from Flag-gate #1: our six-year-old son Harlan, who eavesdrops on Zach and me in the car, is now demanding to know the meaning of the “C-word”—an epithet hurled at Martha-Ann Alito during an argument with a neighbor, which precipitated the upside-down-flag flying. We welcome suggestions for a suitable white lie we can tell him.

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