I think you're off on this one, David. The "Appeal to Heaven" flag was almost completely forgotten until it was rediscovered and promoted by Dutch Sheets in 2013. (This Rolling Stone piece by Brad Onishi is about Mike Johnson but does a good job recounting the history and meaning: https://www.rollingstone.com/politics/political-commentary/mike-johnson-christian-nationalist-appeal-to-heaven-flag-1234873851/ ). Post-2013, it had one meaning and one meaning only: the theopolitics of the New Apostolic Reformation. That's why it was so common on Jan 6. Strassel's WSJ piece is willfully ignorant of this to the point of being deeply misleading and in bad faith. To choose the most incendiary possible analogy, it would be like someone saying "Well, a Swastika was an ancient Indian symbol and is still used in many Hindu temples." Yes, that's true, but post-WW2 it really only has one meaning in the West. Likewise here.
Also, you argue too narrowly that what's wrong about that flag is its connection to Jan 6 or Stop the Steal. Also incorrect. The flag represents NAR and theocracy - capturing all the "mountains" of American society. To fly that flag in the same year that the court system was "captured" for Christ -- i.e. Roe was overturned -- is extremely shocking and a gigantic, not-even-close breach of judicial ethics. You don't have to connect the dots to Jan 6 for this to give the appearance of partiality. Just like, again with the incendiary analogy, there doesn't need to be a specific exact reference for flying a flag with a swastika. It stands for what it stands for.
I assume Justice Alito has at least shared ownership of his house. Ask Tony Soprano about whether a wife (or partner) can make unilateral decisions about what political symbols can be displayed on a shared house. If he's the NJ justice, that cuts both ways.
Thanks Jay! I appreciate your insights, as always.
1. Did you know about these flags before today? It goes to whether the swastika comparison is apt.
2. I think the broader the flag’s meaning, the less problematic it is. We already know, from his judicial opinions (like his Obergefell dissent) and his speeches, that Justice Alito believes religion is under attack and being driven from public life.
So if the flag is just “we need more religion in public life” rather than J6-specific, I see it as LESS problematic.
1, Yes, but remember, I write about Christian Nationalism and have written on the NAR before. This flag was talked about in all the religion-and-politics analyses of J6, since it was one of many Christian symbols visible on that day. I taught about it to my Chicago Theological Seminary students last year. As with Mike Johnson's flying of the flag, it's not fair to impute every NAR doctrine to someone who flies it, and of course even within WCN there are diverse readings of it, but it is inconceivable that a smart person would just think "this is a revolutionary war era flag."
1a, I would also say that as a judge, it's incumbent on the judge to, you know, google the political symbol flying over his house and wonder, jeez, might this convey some possible sense of non-impartiality. I feel sure that the judge I clerked for (now the AG) would never have allowed this in a million years.
2, I think if you read the long report referenced in the RS article, you'll see that this is not simply saying 'we need more religion in public life.' That would be analogous to a banner saying ACAB meaning simply 'we need better policing.'
And of course, by "smart person" I mean "smart person who came across this flag in some context" -- not smart people like you who hadn't seen it before.
I respectfully submit that the question is not what we know or we think but what Justice Alito knows and, even more relevant, what he very obviously (from his judicial opinions and extra-judicial statements) thinks.
As for something that might discourage a little boy from alluding to a "c-word," I'd recommend saying it has something to do with the sea. If you tell him something is so naughty that even grown-ups say it with a letter, that's practically incitement.
"If you tell him something is no naughty that even grown-ups say it with a letter, that's practically incitement."
So true! He loves the forbidden—which is why he hasn't forgotten that we haven't told him yet about the C-word (which is what we were hoping would happen).
It's pretty funny that you have us speculating about the possible meaning(s) of one or two allusions (flags) and about whether the justification offered for one allusion was a fabrication while inviting us to help you fabricate a story about the meaning of another allusion (c-word). I like it!
Another thought (consistent with this thread) is to do something like Justice Alito does in some opinions. Inundate him with irrelevant information. You could make him forget about c as a letter by distracting him with information about the sea. There are lots of sea words (sea shell, sea shore, seahorse, sea lion). Then, teach him the nursery rhyme "She Sells Sea Shells."
About "whether the swastika comparison is apt" it's important to think about timing. There was a time in Germany when the swastika wasn't well known except to those in the know. It's a mistake to think that such symbols have significance to society only if they're well known among much of society. By the time they are, it may be too late.
"The "Appeal to Heaven" flag was almost completely forgotten."
Perhaps by you, but I have owned a number of Revolution-era flags, including it along with others such as the Bennington and Bedford flags. It is a part of American history and represents the US. I am not a Christian. To say it has "one meaning and one meaning only" is untrue, but then I would not expect the Rolling Stone to be much of an authority on American history and culture.
Wow ... I simply don't believe there is 'only 1' meaning for just about anything - certainly not these 2 flags. I understand that BLM and other progressive movements have actually used the 'Appeal to Heaven' and an upside-down flag ... And the upside-down flag was often flown in the '60's as part of mass protests against just about anything. The jump-to-conclusion certainty of this age, looking for 'codes' in any kind of speech or expression, baffles me. The upside-down flag has long meant a call for help, or distress signal. (And, as another example, the A-OK sign has meant just that - things are OK - and for some to say that some have appropriated that for evil 'code' doesn't mean anyone who still uses it is somehow evil. And by the way, one can still see -some- using a swastika to refer to long-standing non-Nazi cultures ... )
I looked up the allegation that BLM flew this flag. It is contained in a single tweet, which shows a picture of the fence around Lafayette Park. That fence has a variety of different messages appended to it. The Appeal to Heaven flag is right above a long, conservative-religious prayer and confession to Jesus. It obviously was not placed there by a progressive BLM supporter. On the contrary, its appearance together with a prayer to Jesus to have mercy on America proves the point that this flag has a specific theo-political meaning. https://twitter.com/BruinJustine/status/1794350218865242161
I want to engage on the Swastika comparison. Yes it "only has one meaning in the West" now.
But that's not the case in the "East" (or insert other applicable term as you see fit), where it is still displayed proudly based on its original meaning -- because that's where the symbolism originated. The Swastika is actually a reasonably apt example of the original meaning continuing to people for which it's origins matter. Origins matter to people who are directly engaged with that origin story!
I'm not positing that nothing could ever give rise to a Swastika-like rebranding of something with deep American history. But this story just is not it -- it was not ubiquitously known for the reasons purported by Alito antagonists until this reporting.
We are not some puritan-like society that anything the far-right touches much be immediately and forever written off regardless of history and tradition. Or at least, I would hope a liberal democracy is not.
To be fair, I don't think anybody (that I have seen) said or implied that "anything the far-right touches [must] be immediately and forever written off." Also "rebranding" need not be "ubiquitously known" for it to have powerful significance to some. Prison tattoos seem like a relevant example. We also aren't "some puritan-like society" merely because we have grave concerns about what Justice Alito, himself, was communicating by allowing an upside-down U.S. flag to be flown (for days) outside his house between the particular dates of Jan. 6 and Jan. 20, 2021 or by flying an "Appeal to Heaven" flag at his second home. Justice Alito can speak, and has spoken, for himself. He should do so now instead of his defenders making up arguments for him.
I disagree. The commenter I responded to was very obviously conflating the "Appeal to Heaven" flag with a Swastika and supporting the position that "anything the far-right touches must be immediately and forever written off".
And you are at least implying the same, as the remainder of your comment illuminates, given your "grave concerns" about the usage of such flag, in 2023, with two other non-political flags.
I take issue with the view that I am a "defender" of Alitos rather than an observer of the facts and arguments. But will decline from similarly responding with such rhetoric and keep it to the arguments and facts before us.
Please feel free to help me see whatever in my reply or the original post about the swastika was "supporting the position" that "anything the far-right touches must be immediately and forever written off." I just don't see it. I definitely don't think that way. I know that devils can cite scripture with the best of us. In my eyes, that does nothing to diminish the value of scripture. But when any particular scripture or particular symbol is extensively exploited by people with a particular agenda, it's fair to suspect (under appropriate circumstances) that a person flaunting such scripture or symbol is using it as many others have.
Respectfully, you seem unable to read clear writing-on-the-wall of the commentary around the "Appeal to Heaven" flag being used as an "anything the far-right touches must be renounced and excised" position because it isn't verbatim stated -- when the OP is repeatedly saying the "Appeal to Heaven" flag is a Swastika. But you're more than happy, without hesitation, to read between the (in my opinion unclear) lines that Alito meant something malevolent by allowing his wife to raise flags in distress.
I get that it is cognitively easier to look at OPs comments and say "well it doesn't verbatim say that, so it doesn't mean that". But then you need to extend the same charity to Justice Alito in this fact pattern.
OP boldly with *absolute* hubris and *blatant* partisanship and an *obvious* denial of facts stated "The flag represents NAR and theocracy - capturing all the 'mountains' of American society. To fly that flag in the same year that the court system was 'captured' -- i.e. Roe was overturned -- is extremely shocking and a gigantic, not-even-close breach of judicial ethics"
This cannot in any capacity in any rational way be explained away as anything other than "The far right touched this and it can no longer be touched". OP willfully ignores the flag was flown in 2023. There's nothing more than that.
Actually, it can "in any capacity in any rational way be explained away as anything other" than "The far right touched this and it can no longer be touched." Have you read the Dobbs opinion, of which Justice Alito was the (primary) author? I believe that with his "Appeal to Heaven" flag, Justice Alito was flying his religious views over his house like he was flying them in his judicial opinion. I believe he was taunting people who were upset over his Dobbs decision, and I believe he was flaunting the fact that he leads the majority in a true tyranny of the majority on SCOTUS.
My beliefs are the result of Justice Alito's own words and deeds, not because "the far right" did or said anything. With Dobbs, for example, Justice Alito emphasized that he and at least 4 other justices deliberately put their hands on the scales of justice, specifically, to address an issue that they clearly did not need to address for any legitimate reason. They robbed people of their rights for no better reason than that they had the power to do it. The very first sentence of Justice Alito's opinion in Dobbs even emphasized that he and his gang merely wanted to do what they did, and they wanted to do it, specifically, because it "presents a profound moral issue on which Americans hold sharply conflicting views."
The Pine Tree Flag was not "almost completely forgotten" before 2013. It was featured prominently in the opening credits of the John Adams miniseries on HBO in 2008, at which point it had a pretty big moment and was flown outside of plenty of suburban homes. I recall learning about it in high school American history class in the 90s--the point being the influence of Locke on founders. I've continued to see it occasionally throughout my adult life, in all kinds of contexts where it could never plausibly have a connection to Christian nationalism. The suggestion that it now has one meaning that's completely divorced from the meaning it had for over 200 years is absurd.
In that context, it was part of a collection of historic flags -- like the collection of an individual who posted earlier. It was not flown alone (as your post implies) but as part of a collection of old, historic flags, including the Gadsden flag and others. That seems quite different from flying the flag on its own, in the context of the flag's "re-discovery" by Christian nationalists.
It’s a total bore. They’ve gone after Thomas and his wife for years, to no avail, so now it’s time to go after Alito and his. Forget quiet partners and those on the left, but it’s open season on the spouses of conservative justices.
I consider myself fairly online and more aware of politics than many Americans. I had no idea either flag was associated with “Stop the Steal.” I found David French’s explanation a bit too credulous of the theory without any evidence at all. I don’t always agree with Sarah Isgur, but I certainly do here.
As for a c-word stand-in for Harlan, how about “charlatan”? Definitely not the same misogynistic undertones, but it’s an unkind way to characterize someone else.
I’m wondering if the reason for the disagreement between David French & Sarah Isgur is living in a red vs blue area. David specifically said he saw the upside down flag displayed all over the place in Tennessee in reference to J6. Yet I’ve never seen such a display, and if I ever knew the upside down flag was associated with J6, I’d completely forgotten it by the time this story arose. But (like Sarah in the DMV) I live in a blue city in the NE so of course I wouldn’t see it displayed. Perhaps David is assuming common knowledge based on his constant exposure to the symbol, whereas many of us (including Alito) live in areas where we’d have been unlikely to ever encounter it in the wild.
Unless you think the Alitos are lying, there's no more "information" to be had. Their explanation is the best fit to the facts. The only reason to think otherwise has nothing to do with the evidence and everything to do with wanting to vilify them or gin up a pretext to force him to recuse.
I generally agree with you—as well as Professor Amar, who said he generally believes people unless there are facts going the other way (and here the facts are supportive).
I’m just trying to see this from the perspective of someone with more skepticism. As Zach and I wrote last year in The Atlantic, we live in an age of distrust of elites. Many people are no longer willing to just “take his word for it” because he’s a Supreme Court justice.
I was especially inclined to trust SCOTUS justices until I got to know some of them. I'm unlikely to take Justice Alito's word for much of anything. I think the most important context is not what anyone says (including with any flag) to support Trump. I think the most important context is that Justice Alito is using judicial opinions to craft his legacy.
I suspect his "Appeal to Heaven" flag is as much an arrogant taunt (to anyone who doesn't like his judicial opinions, esp. Dobbs) as it is meant to flaunt his own efforts to entrench religion and religious preferences (esp. in Dobbs and in last Thursday's opinion in Alexander).
Justice Alito’s letter is full of more information that is relevant to recusal (because the standard under the SCOTUS Code of Ethics requires analyzing the situation from the perspective of a “reasonable person who is aware of all relevant circumstances”):
It would be helpful if Justice Alito actually provided accurate factual information (instead of mere vague conclusory characterizations) about all relevant circumstances.
I can save some people a click. Jack's alleged lie is that Justice Alito said that the flag flew upside down "briefly" at his home, when there is evidence that it may have flown in that position for as much as "several days."
I personally consider several days to be consistent with briefly, but I'll leave that to everyone's personal judgement.
Interesting that you'd imply that "briefly" was the only lie addressed. An even more obvious and material lie was addressed emphatically (including by Justice Alito when he purported to offer justifications for the upside-down U.S. flag flying in front of his house (for several days after Jan. 6 and just days before the Jan. 20 inauguration)):
Even more clearly, Justice Alito lied about having “had no involvement whatsoever in the flying of the flag.” He knowingly allowed that flag to fly outside his house, specifically, to antagonize his neighbors.
The point was not merely that he lied about "briefly," alone. He lied about "briefly" to purport to support his lie about "no involvement whatsoever." It seemed to me that (by offering vague and false information) Justice Alito was attempting (initially) to mislead people and prompt them to conclude that the flag flew briefly (for only part of one day) when he was not even home. That is what I did think initially (in part, because it was what I wanted to believe).
According to more investigation by the New York Times (reported yesterday, to which I included a link in my comment to my original piece), Justice Alito also lied about even more. That includes about what his neighbors purportedly did (and when they did it) that purportedly incensed him and Mrs. Alito. And the neighbors the Alito's purportedly targeted reportedly could not easily (and did not actually) even see the flag.
Sorry, yes, the other issue was that Justice Alito said he has "no involvement" when in fact he did walk past the flag and didn't try to force his wife to take it down. Again, I personally find that consistent. I would say I "no involvement" with what my wife plants in the garden that she maintains in our yard, although you would be pedantically correct to point out that I am at some level aware of what she plants, and when she asks if I like it, I even pretend to have noticed it and say "that looks nice."
I haven't looked into the other stuff closely enough to comment yet, sorry.
Why would you imply that he would need to "force his wife" to do anything? Why couldn't he do what he seems to want us to think he did: take the flag down, put it right side up, and fly it like federal law says it should be flown? Could you not do that with a flag being flown outside your home?
The undisputed facts include that a sitting SCOTUS justice flew a U.S. flag upside-down outside his home shortly after the violent attack on the Capitol, Capitol police and our Constitution and only days before the Jan. 20 inauguration that the Jan. 6 violence was meant to prevent. The undisputed facts also include that the mob that openly advocated stopping the count on Jan. 6 (which was part of the mob physically trying to stop the count on Jan. 6) encouraged people to fly a U.S. flag upside-down, and the wife of another closely-aligned SCOTUS justice (Justice Thomas) was actively involved in trying to subvert the legitimate results of the election. Don't you see what Justice Alito did (and what he blamed entirely on his wife) as having much more political significance than your wife growing plants in her garden?
Why would you say that it's undisputed that Justice Alito flew the flag upside down? He says his wife did it, and when the WaPo investigated this a few years back, that's what they were told as well.
I would dispute that I planted petunias in my front yard, but I wouldn't dispute that my wife planted petunias there.
I'll add this to the post itself as an update as well, but for the benefit of folks who are focusing only on the comments at this point, here is Justice Alito's response to the recusal calls. In this letter to Senators Durbin and Whitehouse, he provides a lot of the information that I said it would be helpful to have for evaluating this situation.
Thanks for all the interesting and thoughtful comments! I don't know if I've ever had an issue divide my readership this much. I am pleased—and proud—to see that I have readers from across the ideological spectrum.
As I predicted, I'm taking flak from both sides for this post. But I don't mind, since everyone is being civil and substantive. Thanks for the positive engagement!
A week after the Jan 6 riots, the NY Times did a piece about the flags and symbols used by the rioters, and the Appeal to Heaven flag was not included in the piece. Yet now because Alito - who is absolutely despised by the left, let's be clear - flew the flag, suddently the flag is a "prominent" symbol of Jan. 6? This entire story has strong Orwellian "We have always been at war with Oceania" vibes.
I'm not part of what you refer to as "the left," and I don't despise Justice Alito because of what people on "the left" say about him. I despise him because of what I've seen him write in and do with his own judicial opinions. If you'd like an example, see Black Magic (Justice Alito Lies Again) (Part IV) https://blackcollarcrime.substack.com/p/black-magic-justice-alito-lies-again-54a?r=30ufvh. I despise him because he (as a SCOTUS justice who pretends to be an originalist) lied about the Constitution not empowering Congress to regulate SCOTUS (see https://blackcollarcrime.substack.com/p/speaking-of-justice-alitos-lies?r=30ufvh). So when I see him also flying a U.S. flag outside his house upside down (in a manner that I'm sure he knows is contrary to federal law) and then a flag repeatedly flies above his home that says "Appeal to Heaven," I despise him because he despises us and our Constitution.
Well you're entitled to your opinion about Alito, but you're moving the goalposts now ,no? The issue is whether the flags flown by Alito - both the upside down American flag, and the Appeal to Heavan flag -- are prominent symbols of support for the Jan. 6 riots, and there is no evidence that that is true. Further, flying the flag upside down has been used by groups, including on the left (including BLM) to protest things for decades; are all those people said to be despising the Constitution?
Where did BLM fly the U.S. flag upside-down? I thought that already was debunked above. You also missed my point by a mile. I didn't say or imply that flying a U.S. flag upside-down was "despising the Constitution." I clearly said (for substantive reasons) that Justice Alito despised at least parts of our Constitution. I'm also not moving goalposts. The flags flown over his houses need to be viewed in their context, especially what we actually can verify that Justice Alito actually has included in his public statements and done with his judicial opinions.
David, with all of the rather inflamed takes on flag-gate, I’m grateful for your calm and thorough analysis. The vilification of justices is quite troubling to me, especially when backed by insufficient information. I think part of this comes from the general misunderstanding of how a justice comes to his or her decision - I’ve had so many folks tell me that I’m naive to think that how a justice rules on every case is not completely a function of their personal views and interests on a matter (or, even worse, because a billionaire invited the justice on his yacht that one time). Say what you want about the justices, they are dedicated public servants who do a very demanding job and could be making ten times the salary elsewhere but choose not to. As trite as it sounds, we need to remember that, beneath the robes, justices are human and aren’t immune to the (premature) barbs thrown their way.
Alito has an agenda, and he's flaunting it, whether that's in the words of his opinions, the flags he chooses to fly (why not fly an American flag, in the proper direction, as that seems more fitting of a US Supreme Court Justice), the speeches he gives at Federalist functions, or the articles he writes for the WSJ. Anyone who doesn't see that and isn't following the thread is simply choosing not to see in an effort to give an (undeserved) benefit-of-the-doubt. He's doing it all in plain site and getting away with it, and there literally isn't a damn thing that can be done about it, no matter how many comments go back and forth or articles are written or podcasts are made about it.
Please feel free to read what I've written to expose Justice Alito's true colors regarding his most recent opinion (for the majority) in Alexander v. S.C. State Conf. of the NAACP. I'd recommend starting with "Sam's Club (SCOTUS) Says Separate But Equal Is Cool" https://blackcollarcrime.substack.com/p/scotus-says-separate-but-equal-is?r=30ufvh. Please don't hesitate to let me know anyplace you think I miss the mark.
You are one of my personally most well-respected legal commentators. Akhil is my #1. Unfortunately you are both remarkably indulgent of absurd defenses of Alito. Count me in the Andy Lipka court.
Things got a bit heated between them on that episode!
I'm less defensive of Alito than Professor Amar is. I think both flags should not have been flown, judges should err on the safe side (Judge Ponsor's point), etc. I'd like more facts (whereas I think Professor Amar is willing to close the case now).
But whether having flown these flags last year and in January 2021 requires recusal given the "duty to sit" is a different issue.
Sure did, was expecting blows. I actually hope it doesn’t affect their future relationship. I’m confident it won’t, but still … was like watching your parents fight.
I absolutely don’t think recusal is the issue, and don’t expect (or even want) it. It is the horrible optics. Do we expect an apology from Alito (as Ginsburg, belatedly, made)? Not counting on it.
On the flag stuff - I've seen mountains made of molehills before, but this is ridiculous. I think the most plausible explanation for the upside down flag is just what the Alito's told the Washington Post reporters at the time - Mrs. Alito was upset with a neighbor and responded. Was the response the best - maybe not - but let's not underestimate the stresses and strains that family members of public officials are put under these days. I'm actually surprised that we don't see more of them snap back in ways both wise and unwise.
As for the C word - my advice is to tell the truth. Kid's going to learn sometime. In the meantime, he can begin to learn what it means and why it is not a good word to call people.
Yes obviously the correct, understandable response to a dispute with the neighbors is to fly the American flag in the most disrespectful way possible (unless you are in fact undergoing a maritime or other situation of distress requiring action from observers to save you).
People who like how Alito is using his position certainly are entitled to accept at face value everything he says and to think this issue is irrelevant. But (according to SCOTUS precedent) this issue actually has great legal significance and--at least as important--Justice Alito knew the flags flying outside his homes had tremendous legal significance when he did what he did. See "The Clear Appearance of Impropriety in Justice Alito's Conduct" https://blackcollarcrime.substack.com/p/the-clear-appearance-of-impropriety?r=30ufvh
In addition, much more evidence is available (than Justice Alito's self-serving, vague, deceptive and false statements) about who Justice Alito is and what he intended to communicate to people by allowing those flags to fly above his homes.
“is viewed by a great many people as a banner of allegiance on partisan issues that are or could be before the Court.”
Really? By whom? Since when? It now only has one interpretation? The flag was also used by BLM. I'm not that bright, but isn't this a case of the argumentum ad populum fallacy? Like with many other things, such as "OK" sign, we are told that these things are being "co-opted" by bad actors (without much evidence) and thus are now "tainted". I find all of this so frustrating and divisive--all for no purpose.
And, as far as "few people in the United States...argue that (the American flag) a symbol of evil (yet)," that ship has sailed.
In stories like these, particularly the upside-down flag, people often just forget the obvious:
Even highly intelligent people do things out of spite, annoyance, stupidity, etc. There's no "META" reason. There's no "MESSAGE." Years later, they look back and realize how stupid it was and often forget the exact details. I am not excusing the tone-deafness of it -- but this is just a classic example of people reading way too much into what was probably just dumb behavior.
That is a fair point regarding most people. But, given the particular circumstances (Jan. 6 violence at the Capitol through the Jan. 20 inauguration at the Capitol), it's not a fair point regarding a SCOTUS justice, who necessarily is not merely very smart, but also highly rational and highly political.
Justice Alito is one of the most politically-connected and politically-influential leaders in this nation right now. In Jan. 2021 Justice Alito also was highly influential--and he intended to be even more influential. If we learned nothing else from his opinion in Dobbs (and the history of how Dobbs was handled at SCOTUS) we learned that Justice Alito and his gang were planning their own coup. And, unlike Trump, Justice Alito had the numbers and the right kind of people to pull it off.
Please don't take my word for what Justice Alito is doing. Read Justice Alito's opinion last Thursday (representing the opinions of six SCOTUS justices) in Alexander v. S.C. State Conf. of the NAACP. That opinion openly gives political partisans a blueprint for a successful political coup--with the express blessings of Justice Alito and his gang. You also can go to my substack and read my pieces starting May 24 about what Justice Alito and his gang did in Alexander. Feel free to let me know if you think I missed the mark.
Your point is even less likely applicable to this particular justice. He is ardently and openly patriotic--even to the point of penning strong dissents like the one in Snyder v. Phelps. In his Snyder dissent, Justice Alito vehemently protested other people abusing cherished national symbols.
I also recall (not all that long before Jan. 2021) a lot of patriotic people practically pitching a fit over athletes merely taking a knee during the playing of the National Anthem. Their objection was that silently taking a knee (specifically to signal distress) (somehow) showed such extreme disrespect to our flag that the entire career of a pro football quarterback just had to be cancelled. I don't know Justice Alito's views on that issue, but I believe that the widespread national discussion helped a lot of us think about what kind of use of our flag was appropriate (in our own minds). So that issue influences my thinking about what Justice Alito and Mrs. Alito were thinking and what they did with the U.S. flag in Jan. 2021.
Even the content of Justice Alito's Snyder dissent is against him. According to his own opinion in Snyder (and according to Justice Alito's own story about the message that he and his wife intended to send in January 2021) their use of the U.S. flag was clearly contrary to the letter and spirit of the First Amendment (contrary to the concept of freedom of speech). I'm confident that Justice Alito knew that flying the U.S. flag the way he did was contrary to federal law. I just don't see such a person (the person that Justice Alito says he is) allowing the U.S. flag to fly upside-down outside his house for days (under those circumstances) without a significant reason.
Henry Wray's assessment that, if Justice Alito knew the currently-articulated meaning behind the flags he would be crazy to have not intervened, seems the absolute best reading of the situation and facts presented. Justice Alito, filling the role of being an understanding husband, did not prevent his wife from doing something he viewed as harmless to get her clear frustration/anger/feud out of her system. It's just so clearly the right answer that I cannot force myself to engage in the conspiracies that there's some deeper meaning here (and deeper meaning behind the flags unknown to seemingly everyone prior to the NYT reporting except David French).
It's a dumb story. And should not have received the media attention it has now of all times. If it had been contemporaneously reported, okay maybe. But doing so now only besmirches the reputation of the NYT as a partisan operation.
That said. If Democratic congressman and congresswoman want to legislate for clear, neutral, rules on recusal of supreme court justices on a go-forward basis -- good that sounds eminently reasonable. But clearly they would not have ascribed the same rules to RBG or Thurgood Marshall that they're foisting upon Justice Alito now. It's all so weird looking in from the outside to see partisans acting hypocritically so loudly in ways they'd never apply to their own team.
I just heard on the news today that the flag with the tree on it has flown in front of San Francisco City Hall for years, no issues ever!!!! I can also tell you if a neighbor ever spoke to me they way that neighbor spoke to Mrs. Alito, I would have had a FAR more vigorous response!!! To be called the "c" word?? That is disgraceful.
Just to elaborate briefly on my post, which you so kindly referenced:
The inverted flag episode can mutate from an embarrassment into a potential ethics issue ONLY if one accepts the narrative that the inverted flag was AT THE TIME widely understood (including by the Alitos) to be a symbol of support for Trump’s “Stop the Steal” campaign. But there is scant support for this and plenty to contradict it. As far as I can tell from the reporting, its use in this way was (and is) largely confined to some MAGA fringe groups and other extremists. While a few January rioters carried it, among all sorts of other flags and symbols, the vast majority held American flags right-side-up.
The most telling point against the pro-Trump narrative is a “dog that didn’t bark” one. The Washington Post passed on the story in 2021 in part because it didn’t see the episode as rooted in politics. But if the inverted flag was indeed widely seen as a pro-Trump Stop the Steal symbol, the Post surely would have been well aware of this and would just as surely have run with the story.
While less is known about the Pine Tree flag episode, I’d submit that much the same reasoning applies. Surely this flag was not (and is not) widely known as a symbol of anything, much less Trump’s false election claims. Very few such flags were displayed on January 6. And again, the Alitos’ display of this flag apparently garnered little if any interest or attention until now.
Years after the fact, it easily can seem insignificant that Justice Alito flew (allowed to fly) the U.S. flag upside-down outside his house for days in the days immediately before the Jan. 20 inauguration (after the Jan. 6 attack on the Capitol). But the question really is what Justice Alito intended to do at that time. His explanations don't answer that in a credible way. I don't believe his answer because I don't believe that a very intelligent, highly rational, often quite openly and ardently patriotic SCOTUS justice would do what he did, where he did it, when he did it merely because his wife was upset with his neighbors.
Another way to think about the flags flying over the Alito houses is the opposite of flying a false flag. Back around the time of the Revolutionary War, at least pirates and privateers might fly a false flag to gain advantage. But finally, at the last moment, they would fly the ship's true colors. Flying the ship's true flag wasn't meant merely to communicate a political idea. It was meant to inspire terror and, maybe, capitulation.
Why would it matter whether "the inverted flag was AT THE TIME widely understood (including by the Alitos) to be a symbol of support for Trump’s 'Stop the Steal' campaign." Why is "widely understood" necessary? How can a journalist's decision not to report on something be "the most telling point"? As I mentioned below, a particular federal criminal statute (18 U.S.C. 2384) seems to raise legitimate issues that the reporter would not even have been inclined or able to consider.
The C word must be crone. It insults at least two of Mrs. Alito's age, appearance, and personality. It is also targeted at women specifically, which makes it kind of sexist.
I think you're off on this one, David. The "Appeal to Heaven" flag was almost completely forgotten until it was rediscovered and promoted by Dutch Sheets in 2013. (This Rolling Stone piece by Brad Onishi is about Mike Johnson but does a good job recounting the history and meaning: https://www.rollingstone.com/politics/political-commentary/mike-johnson-christian-nationalist-appeal-to-heaven-flag-1234873851/ ). Post-2013, it had one meaning and one meaning only: the theopolitics of the New Apostolic Reformation. That's why it was so common on Jan 6. Strassel's WSJ piece is willfully ignorant of this to the point of being deeply misleading and in bad faith. To choose the most incendiary possible analogy, it would be like someone saying "Well, a Swastika was an ancient Indian symbol and is still used in many Hindu temples." Yes, that's true, but post-WW2 it really only has one meaning in the West. Likewise here.
Also, you argue too narrowly that what's wrong about that flag is its connection to Jan 6 or Stop the Steal. Also incorrect. The flag represents NAR and theocracy - capturing all the "mountains" of American society. To fly that flag in the same year that the court system was "captured" for Christ -- i.e. Roe was overturned -- is extremely shocking and a gigantic, not-even-close breach of judicial ethics. You don't have to connect the dots to Jan 6 for this to give the appearance of partiality. Just like, again with the incendiary analogy, there doesn't need to be a specific exact reference for flying a flag with a swastika. It stands for what it stands for.
I assume Justice Alito has at least shared ownership of his house. Ask Tony Soprano about whether a wife (or partner) can make unilateral decisions about what political symbols can be displayed on a shared house. If he's the NJ justice, that cuts both ways.
And yes, the C word is Crazy, per other comments.
Thanks Jay! I appreciate your insights, as always.
1. Did you know about these flags before today? It goes to whether the swastika comparison is apt.
2. I think the broader the flag’s meaning, the less problematic it is. We already know, from his judicial opinions (like his Obergefell dissent) and his speeches, that Justice Alito believes religion is under attack and being driven from public life.
So if the flag is just “we need more religion in public life” rather than J6-specific, I see it as LESS problematic.
1, Yes, but remember, I write about Christian Nationalism and have written on the NAR before. This flag was talked about in all the religion-and-politics analyses of J6, since it was one of many Christian symbols visible on that day. I taught about it to my Chicago Theological Seminary students last year. As with Mike Johnson's flying of the flag, it's not fair to impute every NAR doctrine to someone who flies it, and of course even within WCN there are diverse readings of it, but it is inconceivable that a smart person would just think "this is a revolutionary war era flag."
1a, I would also say that as a judge, it's incumbent on the judge to, you know, google the political symbol flying over his house and wonder, jeez, might this convey some possible sense of non-impartiality. I feel sure that the judge I clerked for (now the AG) would never have allowed this in a million years.
2, I think if you read the long report referenced in the RS article, you'll see that this is not simply saying 'we need more religion in public life.' That would be analogous to a banner saying ACAB meaning simply 'we need better policing.'
"but it is inconceivable that a smart person would just think 'this is a revolutionary war era flag.'"
How is it inconceivable when it literally IS a Revolutionary War flag? Does it help to imply those that disagree with you are stupid?
And of course, by "smart person" I mean "smart person who came across this flag in some context" -- not smart people like you who hadn't seen it before.
I published a piece earlier today supporting your take on the "appearance of partiality" and the appearance of impropriety. It was about the statements of SCOTUS justices about the confidence we should be able to have in judges: https://blackcollarcrime.substack.com/p/black-magic-justice-alito-lies-again-54a?r=30ufvh
I respectfully submit that the question is not what we know or we think but what Justice Alito knows and, even more relevant, what he very obviously (from his judicial opinions and extra-judicial statements) thinks.
As for something that might discourage a little boy from alluding to a "c-word," I'd recommend saying it has something to do with the sea. If you tell him something is so naughty that even grown-ups say it with a letter, that's practically incitement.
"If you tell him something is no naughty that even grown-ups say it with a letter, that's practically incitement."
So true! He loves the forbidden—which is why he hasn't forgotten that we haven't told him yet about the C-word (which is what we were hoping would happen).
It's pretty funny that you have us speculating about the possible meaning(s) of one or two allusions (flags) and about whether the justification offered for one allusion was a fabrication while inviting us to help you fabricate a story about the meaning of another allusion (c-word). I like it!
Another thought (consistent with this thread) is to do something like Justice Alito does in some opinions. Inundate him with irrelevant information. You could make him forget about c as a letter by distracting him with information about the sea. There are lots of sea words (sea shell, sea shore, seahorse, sea lion). Then, teach him the nursery rhyme "She Sells Sea Shells."
About "whether the swastika comparison is apt" it's important to think about timing. There was a time in Germany when the swastika wasn't well known except to those in the know. It's a mistake to think that such symbols have significance to society only if they're well known among much of society. By the time they are, it may be too late.
"The "Appeal to Heaven" flag was almost completely forgotten."
Perhaps by you, but I have owned a number of Revolution-era flags, including it along with others such as the Bennington and Bedford flags. It is a part of American history and represents the US. I am not a Christian. To say it has "one meaning and one meaning only" is untrue, but then I would not expect the Rolling Stone to be much of an authority on American history and culture.
Wow ... I simply don't believe there is 'only 1' meaning for just about anything - certainly not these 2 flags. I understand that BLM and other progressive movements have actually used the 'Appeal to Heaven' and an upside-down flag ... And the upside-down flag was often flown in the '60's as part of mass protests against just about anything. The jump-to-conclusion certainty of this age, looking for 'codes' in any kind of speech or expression, baffles me. The upside-down flag has long meant a call for help, or distress signal. (And, as another example, the A-OK sign has meant just that - things are OK - and for some to say that some have appropriated that for evil 'code' doesn't mean anyone who still uses it is somehow evil. And by the way, one can still see -some- using a swastika to refer to long-standing non-Nazi cultures ... )
I looked up the allegation that BLM flew this flag. It is contained in a single tweet, which shows a picture of the fence around Lafayette Park. That fence has a variety of different messages appended to it. The Appeal to Heaven flag is right above a long, conservative-religious prayer and confession to Jesus. It obviously was not placed there by a progressive BLM supporter. On the contrary, its appearance together with a prayer to Jesus to have mercy on America proves the point that this flag has a specific theo-political meaning. https://twitter.com/BruinJustine/status/1794350218865242161
I want to engage on the Swastika comparison. Yes it "only has one meaning in the West" now.
But that's not the case in the "East" (or insert other applicable term as you see fit), where it is still displayed proudly based on its original meaning -- because that's where the symbolism originated. The Swastika is actually a reasonably apt example of the original meaning continuing to people for which it's origins matter. Origins matter to people who are directly engaged with that origin story!
I'm not positing that nothing could ever give rise to a Swastika-like rebranding of something with deep American history. But this story just is not it -- it was not ubiquitously known for the reasons purported by Alito antagonists until this reporting.
We are not some puritan-like society that anything the far-right touches much be immediately and forever written off regardless of history and tradition. Or at least, I would hope a liberal democracy is not.
To be fair, I don't think anybody (that I have seen) said or implied that "anything the far-right touches [must] be immediately and forever written off." Also "rebranding" need not be "ubiquitously known" for it to have powerful significance to some. Prison tattoos seem like a relevant example. We also aren't "some puritan-like society" merely because we have grave concerns about what Justice Alito, himself, was communicating by allowing an upside-down U.S. flag to be flown (for days) outside his house between the particular dates of Jan. 6 and Jan. 20, 2021 or by flying an "Appeal to Heaven" flag at his second home. Justice Alito can speak, and has spoken, for himself. He should do so now instead of his defenders making up arguments for him.
I disagree. The commenter I responded to was very obviously conflating the "Appeal to Heaven" flag with a Swastika and supporting the position that "anything the far-right touches must be immediately and forever written off".
And you are at least implying the same, as the remainder of your comment illuminates, given your "grave concerns" about the usage of such flag, in 2023, with two other non-political flags.
I take issue with the view that I am a "defender" of Alitos rather than an observer of the facts and arguments. But will decline from similarly responding with such rhetoric and keep it to the arguments and facts before us.
Please feel free to help me see whatever in my reply or the original post about the swastika was "supporting the position" that "anything the far-right touches must be immediately and forever written off." I just don't see it. I definitely don't think that way. I know that devils can cite scripture with the best of us. In my eyes, that does nothing to diminish the value of scripture. But when any particular scripture or particular symbol is extensively exploited by people with a particular agenda, it's fair to suspect (under appropriate circumstances) that a person flaunting such scripture or symbol is using it as many others have.
Respectfully, you seem unable to read clear writing-on-the-wall of the commentary around the "Appeal to Heaven" flag being used as an "anything the far-right touches must be renounced and excised" position because it isn't verbatim stated -- when the OP is repeatedly saying the "Appeal to Heaven" flag is a Swastika. But you're more than happy, without hesitation, to read between the (in my opinion unclear) lines that Alito meant something malevolent by allowing his wife to raise flags in distress.
I get that it is cognitively easier to look at OPs comments and say "well it doesn't verbatim say that, so it doesn't mean that". But then you need to extend the same charity to Justice Alito in this fact pattern.
OP boldly with *absolute* hubris and *blatant* partisanship and an *obvious* denial of facts stated "The flag represents NAR and theocracy - capturing all the 'mountains' of American society. To fly that flag in the same year that the court system was 'captured' -- i.e. Roe was overturned -- is extremely shocking and a gigantic, not-even-close breach of judicial ethics"
This cannot in any capacity in any rational way be explained away as anything other than "The far right touched this and it can no longer be touched". OP willfully ignores the flag was flown in 2023. There's nothing more than that.
Actually, it can "in any capacity in any rational way be explained away as anything other" than "The far right touched this and it can no longer be touched." Have you read the Dobbs opinion, of which Justice Alito was the (primary) author? I believe that with his "Appeal to Heaven" flag, Justice Alito was flying his religious views over his house like he was flying them in his judicial opinion. I believe he was taunting people who were upset over his Dobbs decision, and I believe he was flaunting the fact that he leads the majority in a true tyranny of the majority on SCOTUS.
My beliefs are the result of Justice Alito's own words and deeds, not because "the far right" did or said anything. With Dobbs, for example, Justice Alito emphasized that he and at least 4 other justices deliberately put their hands on the scales of justice, specifically, to address an issue that they clearly did not need to address for any legitimate reason. They robbed people of their rights for no better reason than that they had the power to do it. The very first sentence of Justice Alito's opinion in Dobbs even emphasized that he and his gang merely wanted to do what they did, and they wanted to do it, specifically, because it "presents a profound moral issue on which Americans hold sharply conflicting views."
The Pine Tree Flag was not "almost completely forgotten" before 2013. It was featured prominently in the opening credits of the John Adams miniseries on HBO in 2008, at which point it had a pretty big moment and was flown outside of plenty of suburban homes. I recall learning about it in high school American history class in the 90s--the point being the influence of Locke on founders. I've continued to see it occasionally throughout my adult life, in all kinds of contexts where it could never plausibly have a connection to Christian nationalism. The suggestion that it now has one meaning that's completely divorced from the meaning it had for over 200 years is absurd.
Is christian nationalism why the flag was flown in front of San Francisco city hall as recently as a couple years ago?
In that context, it was part of a collection of historic flags -- like the collection of an individual who posted earlier. It was not flown alone (as your post implies) but as part of a collection of old, historic flags, including the Gadsden flag and others. That seems quite different from flying the flag on its own, in the context of the flag's "re-discovery" by Christian nationalists.
It’s a total bore. They’ve gone after Thomas and his wife for years, to no avail, so now it’s time to go after Alito and his. Forget quiet partners and those on the left, but it’s open season on the spouses of conservative justices.
I consider myself fairly online and more aware of politics than many Americans. I had no idea either flag was associated with “Stop the Steal.” I found David French’s explanation a bit too credulous of the theory without any evidence at all. I don’t always agree with Sarah Isgur, but I certainly do here.
As for a c-word stand-in for Harlan, how about “charlatan”? Definitely not the same misogynistic undertones, but it’s an unkind way to characterize someone else.
1. I also consider myself reasonably well-informed, and I knew about neither flag’s J6 associations until now.
2. You are the second person to suggest “charlatan”! That might be the winner.
I’m wondering if the reason for the disagreement between David French & Sarah Isgur is living in a red vs blue area. David specifically said he saw the upside down flag displayed all over the place in Tennessee in reference to J6. Yet I’ve never seen such a display, and if I ever knew the upside down flag was associated with J6, I’d completely forgotten it by the time this story arose. But (like Sarah in the DMV) I live in a blue city in the NE so of course I wouldn’t see it displayed. Perhaps David is assuming common knowledge based on his constant exposure to the symbol, whereas many of us (including Alito) live in areas where we’d have been unlikely to ever encounter it in the wild.
Unless you think the Alitos are lying, there's no more "information" to be had. Their explanation is the best fit to the facts. The only reason to think otherwise has nothing to do with the evidence and everything to do with wanting to vilify them or gin up a pretext to force him to recuse.
I generally agree with you—as well as Professor Amar, who said he generally believes people unless there are facts going the other way (and here the facts are supportive).
I’m just trying to see this from the perspective of someone with more skepticism. As Zach and I wrote last year in The Atlantic, we live in an age of distrust of elites. Many people are no longer willing to just “take his word for it” because he’s a Supreme Court justice.
https://www.theatlantic.com/ideas/archive/2023/09/supreme-court-ethics-oversight-criticism/675460/?gift=8dwuRlq-u4MN-Q9V3JPTqBz6ba0zgb475gJkSyhkqFw&utm_source=copy-link&utm_medium=social&utm_campaign=share
I was especially inclined to trust SCOTUS justices until I got to know some of them. I'm unlikely to take Justice Alito's word for much of anything. I think the most important context is not what anyone says (including with any flag) to support Trump. I think the most important context is that Justice Alito is using judicial opinions to craft his legacy.
I suspect his "Appeal to Heaven" flag is as much an arrogant taunt (to anyone who doesn't like his judicial opinions, esp. Dobbs) as it is meant to flaunt his own efforts to entrench religion and religious preferences (esp. in Dobbs and in last Thursday's opinion in Alexander).
But back to trusting and believing, we have seen Justice Alito lie even about our Constitution. For elaboration see "Speaking of Justice Alito's Lies" https://blackcollarcrime.substack.com/p/speaking-of-justice-alitos-lies?r=30ufvh.
Justice Alito’s letter is full of more information that is relevant to recusal (because the standard under the SCOTUS Code of Ethics requires analyzing the situation from the perspective of a “reasonable person who is aware of all relevant circumstances”):
https://www.documentcloud.org/documents/24698796-letter-from-justice-alito-to-senators-durbin-and-whitehouse
It would be helpful if Justice Alito actually provided accurate factual information (instead of mere vague conclusory characterizations) about all relevant circumstances.
I haven't seen anything that makes me think "the Alitos" are lying. Just one Alito. For elaboration, see "We Just Saw Justice Alito Lie With Our Own Eyes" https://blackcollarcrime.substack.com/p/we-just-saw-justice-alito-lie-with?r=30ufvh
I can save some people a click. Jack's alleged lie is that Justice Alito said that the flag flew upside down "briefly" at his home, when there is evidence that it may have flown in that position for as much as "several days."
I personally consider several days to be consistent with briefly, but I'll leave that to everyone's personal judgement.
Interesting that you'd imply that "briefly" was the only lie addressed. An even more obvious and material lie was addressed emphatically (including by Justice Alito when he purported to offer justifications for the upside-down U.S. flag flying in front of his house (for several days after Jan. 6 and just days before the Jan. 20 inauguration)):
Even more clearly, Justice Alito lied about having “had no involvement whatsoever in the flying of the flag.” He knowingly allowed that flag to fly outside his house, specifically, to antagonize his neighbors.
The point was not merely that he lied about "briefly," alone. He lied about "briefly" to purport to support his lie about "no involvement whatsoever." It seemed to me that (by offering vague and false information) Justice Alito was attempting (initially) to mislead people and prompt them to conclude that the flag flew briefly (for only part of one day) when he was not even home. That is what I did think initially (in part, because it was what I wanted to believe).
According to more investigation by the New York Times (reported yesterday, to which I included a link in my comment to my original piece), Justice Alito also lied about even more. That includes about what his neighbors purportedly did (and when they did it) that purportedly incensed him and Mrs. Alito. And the neighbors the Alito's purportedly targeted reportedly could not easily (and did not actually) even see the flag.
Sorry, yes, the other issue was that Justice Alito said he has "no involvement" when in fact he did walk past the flag and didn't try to force his wife to take it down. Again, I personally find that consistent. I would say I "no involvement" with what my wife plants in the garden that she maintains in our yard, although you would be pedantically correct to point out that I am at some level aware of what she plants, and when she asks if I like it, I even pretend to have noticed it and say "that looks nice."
I haven't looked into the other stuff closely enough to comment yet, sorry.
Why would you imply that he would need to "force his wife" to do anything? Why couldn't he do what he seems to want us to think he did: take the flag down, put it right side up, and fly it like federal law says it should be flown? Could you not do that with a flag being flown outside your home?
The undisputed facts include that a sitting SCOTUS justice flew a U.S. flag upside-down outside his home shortly after the violent attack on the Capitol, Capitol police and our Constitution and only days before the Jan. 20 inauguration that the Jan. 6 violence was meant to prevent. The undisputed facts also include that the mob that openly advocated stopping the count on Jan. 6 (which was part of the mob physically trying to stop the count on Jan. 6) encouraged people to fly a U.S. flag upside-down, and the wife of another closely-aligned SCOTUS justice (Justice Thomas) was actively involved in trying to subvert the legitimate results of the election. Don't you see what Justice Alito did (and what he blamed entirely on his wife) as having much more political significance than your wife growing plants in her garden?
Why would you say that it's undisputed that Justice Alito flew the flag upside down? He says his wife did it, and when the WaPo investigated this a few years back, that's what they were told as well.
I would dispute that I planted petunias in my front yard, but I wouldn't dispute that my wife planted petunias there.
Are you SURE you are a real “human person”? No posts, notes or likes and only 2 reads??!
I'll add this to the post itself as an update as well, but for the benefit of folks who are focusing only on the comments at this point, here is Justice Alito's response to the recusal calls. In this letter to Senators Durbin and Whitehouse, he provides a lot of the information that I said it would be helpful to have for evaluating this situation.
https://www.documentcloud.org/documents/24698796-letter-from-justice-alito-to-senators-durbin-and-whitehouse
I have too much to say about Justice Alito's refusal to recuse to include in a mere post, but it's easily accessible:
"More Lies and Extreme Deceit in Justice Alito’s Refusal to Recuse" https://blackcollarcrime.substack.com/p/more-lies-and-extreme-deceit-in-justice?r=30ufvh
"The Clear Appearance of Impropriety in Justice Alito's Conduct" https://blackcollarcrime.substack.com/p/the-clear-appearance-of-impropriety?r=30ufvh
Thanks for all the interesting and thoughtful comments! I don't know if I've ever had an issue divide my readership this much. I am pleased—and proud—to see that I have readers from across the ideological spectrum.
As I predicted, I'm taking flak from both sides for this post. But I don't mind, since everyone is being civil and substantive. Thanks for the positive engagement!
I'm more upset about the Phillies flag!
Couldn’t happen to a better team.
A week after the Jan 6 riots, the NY Times did a piece about the flags and symbols used by the rioters, and the Appeal to Heaven flag was not included in the piece. Yet now because Alito - who is absolutely despised by the left, let's be clear - flew the flag, suddently the flag is a "prominent" symbol of Jan. 6? This entire story has strong Orwellian "We have always been at war with Oceania" vibes.
I'm not part of what you refer to as "the left," and I don't despise Justice Alito because of what people on "the left" say about him. I despise him because of what I've seen him write in and do with his own judicial opinions. If you'd like an example, see Black Magic (Justice Alito Lies Again) (Part IV) https://blackcollarcrime.substack.com/p/black-magic-justice-alito-lies-again-54a?r=30ufvh. I despise him because he (as a SCOTUS justice who pretends to be an originalist) lied about the Constitution not empowering Congress to regulate SCOTUS (see https://blackcollarcrime.substack.com/p/speaking-of-justice-alitos-lies?r=30ufvh). So when I see him also flying a U.S. flag outside his house upside down (in a manner that I'm sure he knows is contrary to federal law) and then a flag repeatedly flies above his home that says "Appeal to Heaven," I despise him because he despises us and our Constitution.
Well you're entitled to your opinion about Alito, but you're moving the goalposts now ,no? The issue is whether the flags flown by Alito - both the upside down American flag, and the Appeal to Heavan flag -- are prominent symbols of support for the Jan. 6 riots, and there is no evidence that that is true. Further, flying the flag upside down has been used by groups, including on the left (including BLM) to protest things for decades; are all those people said to be despising the Constitution?
Where did BLM fly the U.S. flag upside-down? I thought that already was debunked above. You also missed my point by a mile. I didn't say or imply that flying a U.S. flag upside-down was "despising the Constitution." I clearly said (for substantive reasons) that Justice Alito despised at least parts of our Constitution. I'm also not moving goalposts. The flags flown over his houses need to be viewed in their context, especially what we actually can verify that Justice Alito actually has included in his public statements and done with his judicial opinions.
David, with all of the rather inflamed takes on flag-gate, I’m grateful for your calm and thorough analysis. The vilification of justices is quite troubling to me, especially when backed by insufficient information. I think part of this comes from the general misunderstanding of how a justice comes to his or her decision - I’ve had so many folks tell me that I’m naive to think that how a justice rules on every case is not completely a function of their personal views and interests on a matter (or, even worse, because a billionaire invited the justice on his yacht that one time). Say what you want about the justices, they are dedicated public servants who do a very demanding job and could be making ten times the salary elsewhere but choose not to. As trite as it sounds, we need to remember that, beneath the robes, justices are human and aren’t immune to the (premature) barbs thrown their way.
Alito has an agenda, and he's flaunting it, whether that's in the words of his opinions, the flags he chooses to fly (why not fly an American flag, in the proper direction, as that seems more fitting of a US Supreme Court Justice), the speeches he gives at Federalist functions, or the articles he writes for the WSJ. Anyone who doesn't see that and isn't following the thread is simply choosing not to see in an effort to give an (undeserved) benefit-of-the-doubt. He's doing it all in plain site and getting away with it, and there literally isn't a damn thing that can be done about it, no matter how many comments go back and forth or articles are written or podcasts are made about it.
Please feel free to read what I've written to expose Justice Alito's true colors regarding his most recent opinion (for the majority) in Alexander v. S.C. State Conf. of the NAACP. I'd recommend starting with "Sam's Club (SCOTUS) Says Separate But Equal Is Cool" https://blackcollarcrime.substack.com/p/scotus-says-separate-but-equal-is?r=30ufvh. Please don't hesitate to let me know anyplace you think I miss the mark.
You are one of my personally most well-respected legal commentators. Akhil is my #1. Unfortunately you are both remarkably indulgent of absurd defenses of Alito. Count me in the Andy Lipka court.
Things got a bit heated between them on that episode!
I'm less defensive of Alito than Professor Amar is. I think both flags should not have been flown, judges should err on the safe side (Judge Ponsor's point), etc. I'd like more facts (whereas I think Professor Amar is willing to close the case now).
But whether having flown these flags last year and in January 2021 requires recusal given the "duty to sit" is a different issue.
Sure did, was expecting blows. I actually hope it doesn’t affect their future relationship. I’m confident it won’t, but still … was like watching your parents fight.
I absolutely don’t think recusal is the issue, and don’t expect (or even want) it. It is the horrible optics. Do we expect an apology from Alito (as Ginsburg, belatedly, made)? Not counting on it.
On the flag stuff - I've seen mountains made of molehills before, but this is ridiculous. I think the most plausible explanation for the upside down flag is just what the Alito's told the Washington Post reporters at the time - Mrs. Alito was upset with a neighbor and responded. Was the response the best - maybe not - but let's not underestimate the stresses and strains that family members of public officials are put under these days. I'm actually surprised that we don't see more of them snap back in ways both wise and unwise.
As for the C word - my advice is to tell the truth. Kid's going to learn sometime. In the meantime, he can begin to learn what it means and why it is not a good word to call people.
Yes obviously the correct, understandable response to a dispute with the neighbors is to fly the American flag in the most disrespectful way possible (unless you are in fact undergoing a maritime or other situation of distress requiring action from observers to save you).
People who like how Alito is using his position certainly are entitled to accept at face value everything he says and to think this issue is irrelevant. But (according to SCOTUS precedent) this issue actually has great legal significance and--at least as important--Justice Alito knew the flags flying outside his homes had tremendous legal significance when he did what he did. See "The Clear Appearance of Impropriety in Justice Alito's Conduct" https://blackcollarcrime.substack.com/p/the-clear-appearance-of-impropriety?r=30ufvh
See also "More Lies and Deceit in Justice Alito’s Recusal Refusal" https://blackcollarcrime.substack.com/p/more-lies-and-extreme-deceit-in-justice?r=30ufvh
In addition, much more evidence is available (than Justice Alito's self-serving, vague, deceptive and false statements) about who Justice Alito is and what he intended to communicate to people by allowing those flags to fly above his homes.
See "Justice Alito’s Flag Flying, Flagrant Lies and Violations of Federal Law and His Own Opinions" https://blackcollarcrime.substack.com/p/justice-alitos-flag-flying-flagrant?r=30ufvh
“is viewed by a great many people as a banner of allegiance on partisan issues that are or could be before the Court.”
Really? By whom? Since when? It now only has one interpretation? The flag was also used by BLM. I'm not that bright, but isn't this a case of the argumentum ad populum fallacy? Like with many other things, such as "OK" sign, we are told that these things are being "co-opted" by bad actors (without much evidence) and thus are now "tainted". I find all of this so frustrating and divisive--all for no purpose.
And, as far as "few people in the United States...argue that (the American flag) a symbol of evil (yet)," that ship has sailed.
In stories like these, particularly the upside-down flag, people often just forget the obvious:
Even highly intelligent people do things out of spite, annoyance, stupidity, etc. There's no "META" reason. There's no "MESSAGE." Years later, they look back and realize how stupid it was and often forget the exact details. I am not excusing the tone-deafness of it -- but this is just a classic example of people reading way too much into what was probably just dumb behavior.
That is a fair point regarding most people. But, given the particular circumstances (Jan. 6 violence at the Capitol through the Jan. 20 inauguration at the Capitol), it's not a fair point regarding a SCOTUS justice, who necessarily is not merely very smart, but also highly rational and highly political.
Justice Alito is one of the most politically-connected and politically-influential leaders in this nation right now. In Jan. 2021 Justice Alito also was highly influential--and he intended to be even more influential. If we learned nothing else from his opinion in Dobbs (and the history of how Dobbs was handled at SCOTUS) we learned that Justice Alito and his gang were planning their own coup. And, unlike Trump, Justice Alito had the numbers and the right kind of people to pull it off.
Please don't take my word for what Justice Alito is doing. Read Justice Alito's opinion last Thursday (representing the opinions of six SCOTUS justices) in Alexander v. S.C. State Conf. of the NAACP. That opinion openly gives political partisans a blueprint for a successful political coup--with the express blessings of Justice Alito and his gang. You also can go to my substack and read my pieces starting May 24 about what Justice Alito and his gang did in Alexander. Feel free to let me know if you think I missed the mark.
Your point is even less likely applicable to this particular justice. He is ardently and openly patriotic--even to the point of penning strong dissents like the one in Snyder v. Phelps. In his Snyder dissent, Justice Alito vehemently protested other people abusing cherished national symbols.
I also recall (not all that long before Jan. 2021) a lot of patriotic people practically pitching a fit over athletes merely taking a knee during the playing of the National Anthem. Their objection was that silently taking a knee (specifically to signal distress) (somehow) showed such extreme disrespect to our flag that the entire career of a pro football quarterback just had to be cancelled. I don't know Justice Alito's views on that issue, but I believe that the widespread national discussion helped a lot of us think about what kind of use of our flag was appropriate (in our own minds). So that issue influences my thinking about what Justice Alito and Mrs. Alito were thinking and what they did with the U.S. flag in Jan. 2021.
Even the content of Justice Alito's Snyder dissent is against him. According to his own opinion in Snyder (and according to Justice Alito's own story about the message that he and his wife intended to send in January 2021) their use of the U.S. flag was clearly contrary to the letter and spirit of the First Amendment (contrary to the concept of freedom of speech). I'm confident that Justice Alito knew that flying the U.S. flag the way he did was contrary to federal law. I just don't see such a person (the person that Justice Alito says he is) allowing the U.S. flag to fly upside-down outside his house for days (under those circumstances) without a significant reason.
Henry Wray's assessment that, if Justice Alito knew the currently-articulated meaning behind the flags he would be crazy to have not intervened, seems the absolute best reading of the situation and facts presented. Justice Alito, filling the role of being an understanding husband, did not prevent his wife from doing something he viewed as harmless to get her clear frustration/anger/feud out of her system. It's just so clearly the right answer that I cannot force myself to engage in the conspiracies that there's some deeper meaning here (and deeper meaning behind the flags unknown to seemingly everyone prior to the NYT reporting except David French).
It's a dumb story. And should not have received the media attention it has now of all times. If it had been contemporaneously reported, okay maybe. But doing so now only besmirches the reputation of the NYT as a partisan operation.
That said. If Democratic congressman and congresswoman want to legislate for clear, neutral, rules on recusal of supreme court justices on a go-forward basis -- good that sounds eminently reasonable. But clearly they would not have ascribed the same rules to RBG or Thurgood Marshall that they're foisting upon Justice Alito now. It's all so weird looking in from the outside to see partisans acting hypocritically so loudly in ways they'd never apply to their own team.
I just heard on the news today that the flag with the tree on it has flown in front of San Francisco City Hall for years, no issues ever!!!! I can also tell you if a neighbor ever spoke to me they way that neighbor spoke to Mrs. Alito, I would have had a FAR more vigorous response!!! To be called the "c" word?? That is disgraceful.
Yes, it’s shocking to learn that San Francisco’s leaders fit The NY Times profile of pro-Trump election deniers.
Just to elaborate briefly on my post, which you so kindly referenced:
The inverted flag episode can mutate from an embarrassment into a potential ethics issue ONLY if one accepts the narrative that the inverted flag was AT THE TIME widely understood (including by the Alitos) to be a symbol of support for Trump’s “Stop the Steal” campaign. But there is scant support for this and plenty to contradict it. As far as I can tell from the reporting, its use in this way was (and is) largely confined to some MAGA fringe groups and other extremists. While a few January rioters carried it, among all sorts of other flags and symbols, the vast majority held American flags right-side-up.
The most telling point against the pro-Trump narrative is a “dog that didn’t bark” one. The Washington Post passed on the story in 2021 in part because it didn’t see the episode as rooted in politics. But if the inverted flag was indeed widely seen as a pro-Trump Stop the Steal symbol, the Post surely would have been well aware of this and would just as surely have run with the story.
While less is known about the Pine Tree flag episode, I’d submit that much the same reasoning applies. Surely this flag was not (and is not) widely known as a symbol of anything, much less Trump’s false election claims. Very few such flags were displayed on January 6. And again, the Alitos’ display of this flag apparently garnered little if any interest or attention until now.
Years after the fact, it easily can seem insignificant that Justice Alito flew (allowed to fly) the U.S. flag upside-down outside his house for days in the days immediately before the Jan. 20 inauguration (after the Jan. 6 attack on the Capitol). But the question really is what Justice Alito intended to do at that time. His explanations don't answer that in a credible way. I don't believe his answer because I don't believe that a very intelligent, highly rational, often quite openly and ardently patriotic SCOTUS justice would do what he did, where he did it, when he did it merely because his wife was upset with his neighbors.
Another way to think about the flags flying over the Alito houses is the opposite of flying a false flag. Back around the time of the Revolutionary War, at least pirates and privateers might fly a false flag to gain advantage. But finally, at the last moment, they would fly the ship's true colors. Flying the ship's true flag wasn't meant merely to communicate a political idea. It was meant to inspire terror and, maybe, capitulation.
Why would it matter whether "the inverted flag was AT THE TIME widely understood (including by the Alitos) to be a symbol of support for Trump’s 'Stop the Steal' campaign." Why is "widely understood" necessary? How can a journalist's decision not to report on something be "the most telling point"? As I mentioned below, a particular federal criminal statute (18 U.S.C. 2384) seems to raise legitimate issues that the reporter would not even have been inclined or able to consider.
The C word must be crone. It insults at least two of Mrs. Alito's age, appearance, and personality. It is also targeted at women specifically, which makes it kind of sexist.