The NYT reports: At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display
After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.
One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., in Alexandria, Va., according to photographs and interviews with neighbors.
If one is unfamiliar with symbolism, the piece explains as follows.
Turning the American flag upside down is a symbol of emergency and distress, first used as a military S.O.S., historians said in interviews. In recent decades, it has increasingly been used as a political protest symbol — a controversial one, because the flag code and military tradition require the paramount symbol of the United States to be treated with respect.
The linked piece does a good job of further elaborating on the linkage of the upside-down flag at the Stop the Steal movement.
When confronted with this story, Justice Alito deflects.
“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot.
Let’s just stop there. Alito has to know that this is nonsense. I am just a dean at a regional university, but if my wife put a sign in the yard that was associated with, say, racist views in a way that Black students would think I was biased against them, I could not just blame it on my wife as if it had no bearing on me. If she had a beef with the upper administration of my institution and displayed messaging that could reasonably be associated with criticizing them in an inflammatory way, that would definitely redound to me. (And likewise, if I displayed something that could affect her professionally).
Being a Justice on the US Supreme Court is many quanta beyond my petty authority and Alito knows what job he has. To pretend like it has nothing to do with him is beyond nonsense.
Look, on the one hand, I am not at all suggesting that spouses must have identical views on things. But on the other, symbols displayed (even if “briefly”) on a shared home are the responsibility of those in the home, especially adult spouses.
The mere impression of political opinion can be a problem, the ethics experts said. “It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Amanda Frost, a law professor at the University of Virginia.
This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.
Interviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and the starkness of the symbol, neighbors interpreted the inverted flag as a political statement by the couple.
Look, it strains credulity that the selection of that symbol at the moment in time with an anti-Trump neighbor was anything other than a “stop the steal” message. That is a highly inflammatory, and utterly unacceptable message coming from the residence of a Supreme Court Justice.
It speaks to the self-degradation of the Court and to why trust in it is eroding. Moreover, it reasonably deepens concerns that there are highly placed members of the federal government who were, and presumably still are, sympathetic to the January 6th insurrection and to Trump’s attempt at overturning the election. We already know that Clarence Thomas’ wife, Ginni, holds such views. So, again, while it is possible that Martha-Ann Alito and Ginni on the one hand have insurrectionist views and Samuel and Thomas do not, I must confess as someone who will be married thirty-four years next month, I find it unlikely that the spouses in question are starkly divided. And, really, the behavior of both husbands on the bench to date signals far more sympathy than antipathy to those views.
Dahlia Lithwick and Mark Joseph Stern take the Alitos to tasks in Slate (The Smallest Justice Who Ever Lived) and the subtitle of their piece is spot-on: “Samuel Alito’s explanations for his wife’s upside-down American flag make the story even worse.”
First, they correctly note that we can’t know with certainty what the symbolism means.
We can certainly quibble (and Alito’s defenders surely will) about whether an upside-down flag really represents “Stop the Steal,” as Kantor’s experts affirm, or some other message of peace and goodwill. We can and will debate over Alito’s claim that his wife hoisted the flag because one of the neighbors hurt their feelings (so, #feminism). But the saddest and most arresting part of this endless downward spiral for the seven jurists who should know better, and the two who do not, is not that they don’t care about what they are doing to the court—it’s how pitifully, shabbily small these ride-or-die political battles really are.
In other words, the Alitos shouldn’t be engaging in really any political symbolism on their home because Samuel is a Justice. And, as they note, “internal policy and external law required them to refrain from acting like thin-skinned partisan nuts, and to recuse themselves from relevant cases when they failed to adhere to this standard.”
Wouldn’t that be nice?
Second, they directly report on the neighborhood dispute.
And yet, in statements to the New York Times and Fox News’ Shannon Bream, Alito implied that he and his wife, Martha-Ann, simply had no choice but to disrespect the stars and stripes by vulgarly violating the U.S. Flag Code because it was necessary to own a liberal neighbor. The justice told Bream that this neighbor put up a “Fuck Trump” sign—where children might see it!—and then another sign “personally” blaming Martha-Ann for Jan. 6. Finally, “a male in the home” called Martha-Ann “the c-word” while she was on a walk with her husband. All this led her to join countless “Stop the Steal” enthusiasts in hanging her American flag upside down.
At the time, this act was associated with fringe-right, QAnon-style conspiracy theorists who supported Trump’s failed coup and dismissed Fox News as too squishy.
Look, I am not going to defend people engaged in name-calling, but maybe, just maybe, if you are married to one of the most powerful members of the US government, you shouldn’t be getting into petty political squabbles with your neighbors. Moreover, none of the above, as unpleasant as Martha-Ann may have felt it was, logically leads to hanging a US flag upside-down in front of your home, especially given the context of the moment.
None of the Alitos’ explanations so far even attempt to explain why Martha-Ann landed on this gesture, out of all the possibilities, to further upset and provoke her progressive neighbors. Readers are also left to guess at the true origin of the conflict; are we really supposed to think that the neighbors picked this fight unprovoked, and the Alitos are completely blameless? The justice’s defenders are scrambling to muddy the waters with some alternate explanation, but the truth is crystal clear, and unrefuted by the Alitos themselves: That flag was hung upside down to piss off some libs. At best, Martha-Ann Alito was trolling her neighbor by professing a militant belief that Biden stole the election; at worst, she held that belief sincerely.
I can’t stress enough that the inability of the Alitos (and the Thomases) not to see how their willingness to indulge themselves in petty partisan politics is undermining a major institution. And, worse than just affecting perceptions, provides direct evidence that we can’t trust either Samuel or Clarence to actually have fidelity to the broader constitutional order. Instead, there is every reason to see them as partisan actors above all else.
Let’s be clear that everything these neighbors stand accused of doing is obviously protected speech under the First Amendment. There is no allegation of genuine harassment or true threats; these people just wanted to express displeasure toward a very public figure and his somewhat public wife. And though Alito seems to believe that he and his wife were within their rights to fight back against an irritating neighbor, the staff who work under Alito at Supreme Court would have no such luxury. The Times piece lays out the strictures on court employees that ban political signs and bumper stickers, “partisan political activity,” and even “nonpartisan political activity” that “could reflect adversely on the dignity or impartiality of the court.”
The court would not say whether the rules that censor its staff also apply to the justices. But Alito must know how terrible it looks for his own household to breach the decorum requirements imposed on the people who work for him. The very idea that the neighbors’ unkind words forced the Alitos to violate the network of rules that prevent shows of bias is just a variation on last year’s defense that a comped seat on a private jet is not subject to disclosure rules because it would have been vacant otherwise.
So when Alito throws his wife under the bus—the flag was “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs”—he’s issuing another justification: He gets to break the rules because she was in a fight with the neighbors. He gets to break the rules because the seat on the plane was otherwise unoccupied. He gets to break the rules because the rules are always trying to trip him up and catch him out.
Indeed.
And I agree fully with this:
The sheer pettiness of these gripes—the fact that these men continue to filter justice through their small, round, grudge-colored glasses—is what is breathtaking here. If being an unelected, lifetime-appointed, unbound-by-rules jurist means anything at all, should it not mean that you perhaps rise above your grassy suburban neighborhood’s feelings wars? Apparently not. Apparently the life-altering principle of self-soothing your small injuries matters above all things.
Again, spouses are their own people and there is a degree to which the spouses of the powerful have a right to their own independent existence. But that right is not absolute and appearances matter for persons whose power is at least in part dependent on the perception of some level of fairness and impartiality. If, to paraphrase John Roberts’ confirmation testimony, Justices are umpires who interpret the strike zone within the established rules of the game, you can’t have the umpire’s wife sitting behind home plate wearing one of the team’s jerseys and waving a pennant. No one would find that acceptable. Yet, somehow, its okay for Ginni Thomas to advocate for overturning the election and for Martha-Ann Alito to fly symbols associated with Stop the Steal?
It reminds me of how Trump gets excused from behavior that would get him fired as the fry guy at McDonald’s but somehow is okay because he simply wants to preoccupy the most powerful office in the world.
Supreme Court Justices have cushy jobs that afford them power and influence, as well as a comfortable living (and, it seems, access to all kinds of side bonuses). They have these jobs for life. It is not unreasonable to want them, and their immediate families, to behave with some level of decorum, respect, and restraint.
But, of course, all this shows that lifetime appointments are a bad idea and that we need to install time-delimited terms.
And let me conclude by quoting myself from last year:
Let me stress that there is nothing wrong with insisting that having as much power as Supreme Court Justices have that it is reasonable to ask for certain accommodations. After all, it is not like they are being drafted. They can always say no if the terms are too steep. They are neither demigods nor philosopher-kings. They are public servants, but at least some of them have forgotten this fact.
I would note that I am asking for certain norms to prevail, which intersects with some recent discussions (such as in the comments to this post). But I would also take the opportunity to note that structural conditions shape the development and evolution of norms. Lifetime appointments, for example definitionally create the circumstances wherein norms to constrain behavior are likely to erode. This is especially true when the practice of seeking multi-decade appointments comes into play (which is itself a norm that developed as a means to exploit the rules).
Some related posts of mine over the years:
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Author: Steven L. Taylor
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