The Alito Flag Follies

Here’s a thought experiment for those obsessing over the Alito family’s flag-flying practices:

Assume that you are a judge on a court whose credibility and legitimacy are under constant political attack and whose members are accused of bias and partisan hackery at the slightest provocation.

Assume further that you understand the inverted American flag and the “Appeal to Heaven” flag to symbolize support for Trump’s “Stop the Steal” campaign and the January 6 attack on the Capitol—dubious as this assumption is.^[1]It’s far from clear that either the inverted American flag or the Appeal to Heaven flag were then, or are even now, widely known as pro-Trump symbols. Indeed, many commenters expressed surprise at … Continue reading

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

Neither would Justice Alito.

The assertion by the Justice’s critics that the flag displays signaled pro-Trump bias requiring his recusal or even his resignation is illogical and implausible. A far more plausible explanation: Like most people, neither Justice Alito nor his wife^[2]According to the Washington Post, Mrs. Alito has no known history of support for Trump’s stolen election claims or the January 6 riot. associated the inverted flag with Trump at the time. Rather, as the Alitos insist, Mrs. Alito intended it only as a distress signal to a neighbor with whom she was feuding. This bizarre incident is surely not a good look for either Alito, but hardly the basis for an ethics scandal. Like most of us, the Alitos probably did not associate the Appeal to Heaven flag with Trump either. (No doubt most of the public had never heard of this flag.) Thus, there is no reason to think that their purpose in flying it, whatever it may have been, was to show allegiance to him.

The argument that these flag displays give rise to at least the appearance, if not the reality, of bias likewise presumes that the Alitos as well as the public associated the flags with Trump and his bogus election claims at the time the displays occurred. But the evidence for this connection is both thin and obscure. Indeed, there appears to be no evidence that the flags were seen or used in this way by anyone other than a few January 6 rioters and members of some fringe MAGA sects.

Importantly, the media is only now devoting major reporting to the notion that such a connection exists, long after the events in question took place. It’s telling in this regard that the flags did not create a stir at the time they were displayed—particularly so in the case of the inverted flag, which was displayed when the Stop the Steal campaign and the January 6 riot were fresh in the public mind. In fact, we now learn that the Washington Post investigated this episode at the time and determined it to be a nothingburger.^[3]The Post declined to report on the episode, finding no clear indication that it was rooted in politics. If the inverted flag was indeed widely understood at the time as a symbol of support for … Continue reading