The Truth Turned Upside-Down

Last week, NY Times investigative journalist Jodi Kantor (best known for her work revealing Harvey Weinstein's predatory history and thus sparking the Me-Too movement) reported that for several days in January 2021--after the insurrection at the Capitol but before the inauguration--an upside-down U.S. flag flew at the home of Justice Samuel Alito. Flying a flag in this manner originated as a naval symbol of distress, but by January 2021 it had also become a symbol of the "Stop the Steal" movement of people who supported Donald Trump's false claim that he was the rightful winner of the 2020 Presidential election.

Kantor's original story included Justice Alito's explanation:

“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.”

The story went on to report that "Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn . . . ." The dispute apparently concerned the neighboring family's display of "an anti-Trump sign with an expletive," which I took to mean a sign like the following one, perhaps with the letter "u" where the asterisk appears:

In a thread on X, FoxNews reporter Shannon Bream wrote that she spoke with Justice Alito, who added details. She wrote that he confirmed that there was some version of the foregoing sign on a neighbor's property; he added that Mrs. Alito objected on the ground that children waiting for the school bus would see the sign; the neighbor then substituted a sign blaming Mrs. Alito for the Insurrection; heated words between Mrs. Alito and the neighbor were exchanged in which the latter said some very nasty things, "including the c-word;" and Mrs. Alito then displayed the upside-down flag in response for what Bream quoted Justice Alito describing as "a short time."

Since breaking the initial story, the Times has also run several follow-ups. For example, this one concerns the impact of the flag news on perceptions of the Supreme Court's ability to impartially adjudicate cases arising out of the 2020 election, including most prominently, Trump's claim that he is absolutely immune from prosecution. I'm quoted in that story as follows:

“These cases were always going to be seen through an ideological and partisan lens,” Michael C. Dorf, a Cornell law professor and former clerk to Justice Anthony Kennedy, said in an interview. “The fact that you’ve got two justices who are strongly identified not just with the Republican Party or the conservative movement but the ‘Stop the Steal’ movement raises that to another level.” Justice Clarence Thomas’s wife, Virginia Thomas, was directly involved in efforts to overturn the election.

Much of the reaction to the upside-down flag episode has centered around whether it obligates Justice Alito to recuse from Insurrection-related cases. I'll leave that discussion to the legal ethics experts--including this excellent explanation on CNN by Professor James Sample, who notes that a reasonable observer seeing an upside-down flag flying from a home jointly owned by the Alitos could have doubts about Justice Alito's impartiality. Professor Sample thinks that this is a "close case," by contrast with the slam-dunk for recusal of Justice Thomas due to the Insurrection-related activities of his wife.

However, as Professor Sample and others have noted, it is extremely unlikely that Justice Alito will in fact recuse, so let's put that issue aside for now, not because it's unimportant but because I want to focus on a different question: what this incident tells us about the relation of Justice Alito and other Republican legal elites to Trumpism.

Neither Justice Alito's email to the Times nor what he told Bream disclaimed knowledge of the flying of the flag when it happened. His email disclaimed only involvement. The email and the reporting by Bream are entirely consistent with the possibility that Justice Alito saw that his wife was about to fly an upside-down flag and did nothing to prevent her from doing so. They are therefore also consistent with the possibility that he not only knew but approved of the flying of the upside-down flag and also knew that it symbolized the Stop-the-Steal movement. If so, that would have been wildly inappropriate. 

Hold on. Maybe Justice Alito didn't think it appropriate to instruct or even ask his wife not to express her political opinion. After all, she's a separate human being with her own constitutional rights.

But this seems implausible too (and not just because Justice Alito isn't exactly a feminist). In his statements to the Times and to Bream, Justice Alito could have said but didn't say that he asked Martha-Ann to take down the flag and she refused. He didn't say that it wasn't his place to ask her. He said only that he wasn't involved in the flying of it. Thus, the most plausible reading of Justice Alito's non-denial denial is that he knew about but didn't object to the flying of the upside-down flag.

Could there nonetheless be an innocent explanation? Maybe Martha-Ann and/or Justice Alito didn't realize that the upside-down flag symbolized support for Trump and the Stop the Steal movement?Professor Josh Blackman floated this possibility when the flag news broke, calling the Times story's association of the upside-down flag with Stop the Steal a "conspiracy theory."

But if that's right, why didn't Justice Alito say that to either the Times or Bream? "Such a misunderstanding," he might have said. "I talked to my wife and she had no idea that an upside-down flag meant Stop the Steal. She flew the flag upside-down to indicate that our house was like a ship in distress, which is a well-known means of responding to a personally insulting message from a neighbor."

Oh, right. That's preposterous. If Justice Alito had disclaimed knowledge of the upside-down flag's Stop-the-Steal association on his and/or his wife's part, that disclaimer would not have been remotely believable. Signaling SOS as if from a ship in distress is not in any way a response to "offensive and personally insulting yard signs." By contrast, a symbol chosen to denote support for Trump and his Big Lie works especially well as a response to yard signs that are critical of Trump or that blame one for the Insurrection.

In other words, the upside-down flag is an especially peculiar reaction to being blamed for the Insurrection--unless one supports the Insurrection.

Suppose that my neighbor put up a yard sign stating "Fuck Dorf. He tortures kittens." In addition to threatening a defamation lawsuit, I'd put up a sign stating "That's an outrageous lie. I love kittens." I surely wouldn't put up a sign that symbolizes my sympathy with kitten torturing.

Using a symbol of support for Trumpist political violence as a means of responding to a personal insult accusing one of having supported Trumpist political violence is a way of identifying with Trumpism at its most repugnant. It aligns the Alitos with Ginni Thomas and other Trumpist conspiracy theorists. And it works as a rejoinder to the neighbor only insofar as it invokes the crude bullying of Trump and his movement.

Where does that leave us? To my mind, this event is part of a larger pattern I discussed earlier this month: as Trump has taken over the Republican Party, people who continue to identify with its policies increasingly normalize him and his authoritarian movement. One sees a version of this in the suggestion by Professor Blackman (in the post linked above) that calling out Alito reflects a "double standard" in light of the fact that Justice Ginsburg didn't face nearly the same level of outrage for her (entirely accurate but nonetheless inappropriate) criticism of Trump in 2016.

Respectfully, that's not a double standard.

For one thing, Justice Ginsburg apologized, recognizing that her comments were inappropriate. Like Trump, Justice Alito doesn't apologize. Also like Trump, he blames the media and rationalizes.

For another and more fundamental thing, there's no double standard here because the outrage directed at Justice Alito is not primarily based on the fact that he or his wife voiced partisan political views. That's a no-no for a judge or justice (as Justice Ginsburg belatedly acknowledged) and probably a bad idea even for the spouse of a judge or a justice. The furor over the Alito upside-down flag is in a different league from ordinary concerns about a judge improperly signaling political views because of the substance of the political views signaled: support for the Big Lie that aimed and continues to aim to undermine American constitutional democracy.

Justice Alito was asked why a flag supporting an anti-democratic Big Lie flew at his house just days after a violent mob sought to prevent the peaceful transfer of power at the behest of an authoritarian President. He could have said he didn't know about the flag at the time. He could have said (but not credibly) that neither he nor his wife knew what the flag symbolized. He could have said that his wife chose to fly it, he knew what it meant, and he regrets it because in retrospect he realizes it created both an appearance of bias and of support for a profoundly anti-democratic movement. He didn't say any of those things. He issued a non-denial denial, which, while raising more questions than it answers, nonetheless provides further evidence of the erosion of any difference between conservative elites and Trumpism.