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The Samuel Alito controversy.

By Isaac Saul May 20, 2024
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In a 2011 protest, a man holds an upside down flag as a sign of distress. Image: Igal Koshevoy/Flickr
In a 2011 protest, a man holds an upside down flag as a sign of distress. Image: Igal Koshevoy/Flickr

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

Are you new here? Get free emails to your inbox daily. Would you rather listen? You can find our podcast here.


Today's read: 10 minutes.

🇺🇸
Today, we're breaking down the controversy over an upside-down flag at Justice Alito's house. Plus, the video from my visit to Penn and a question about undecided voters.

I went to Penn's campus.

For the last few weeks, we’ve been talking on and off about the college encampments popping up across the country in protest of Israel's war in Gaza. After news broke of an encampment at the University of Pennsylvania’s campus — just a few minutes from my home here in Philadelphia — I decided to go check things out for myself. I spent a day at Penn’s encampment and, just hours after I left, the Philadelphia police were called in to clear it out. 

Today, we’re releasing a video report on what I observed at those protests. Before you watch it, I want to offer the following context: I did not go to the Penn campus looking for an argument or trying to engage students or counter-protesters in a debate. I went to observe, to hear the students talk about their protest in their own words, and to get a sense of what was going on. What I saw was just one campus, and it's clear to me that the protests at Penn were pretty different from what we’ve seen at other campuses like Columbia or UCLA. But I still found the experience valuable and illuminating.

We’re really proud of how the video turned out, and hope that you can take the time to watch it on our YouTube channel here:


Quick hits.

  1. Iran's President Ebrahim Raisi and Foreign Minister Hossein Amir-Abdollahian died in a helicopter crash on Sunday. (The crash)
  2. Texas Gov. Greg Abbott (R) pardoned Daniel Perry, a military veteran who was convicted of murdering a Black Lives Matter protester in 2020. (The pardon)
  3. Israel's popular centrist politician Benny Gantz, a member of the country’s war cabinet, threatened to resign if the government does not release a plan for post-war Gaza by June 8. (The threat) Separately, the International Criminal Court is seeking an arrest warrant for Hamas leader Yehiya Sinwar, Israeli Prime Minister Benjamin Netanyahu, and other top leaders from Hamas and Israel. (The announcement)
  4. David DePape, the man convicted of attempting to kidnap Nancy Pelosi and assaulting her husband Paul with a hammer, was sentenced to 30 years in prison. (The sentence)
  5. Former Trump lawyer and New York Mayor Rudy Giuliani was charged with conspiracy, fraud, and forgery in a case relating to electors who defied state voters in Arizona. (The indictment)

Today's topic.

The Samuel Alito controversy. On Thursday, The New York Times reported that an American flag was hanging upside-down outside the home of Supreme Court Justice Samuel Alito for several days shortly after former President Donald Trump lost the 2020 election. 

Historically, an upside-down flag has symbolized many things, from a military S.O.S. to left-wing opposition to the Vietnam War. In the wake of the 2020 election, pro-Trump groups and forums called on Americans who believed that the election had been stolen from Donald Trump to invert their flag as a sign of support. The Alitos’ flag was hanging upside down on January 17, 2021, shortly after the riots at the Capitol and just days before President Joe Biden’s inauguration.

The revelation has raised the question of whether the act violated the Supreme Court’s code of conduct, which restricts justices from political activity, or internal court rules against displaying signs or symbols. After renewed public pressure, the Supreme Court adopted a new code of conduct in November of 2023 calling on justices to avoid any appearance of or participation in political activity.

“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The New York Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Subsequent reporting from The Times suggested the flag was turned upside down after a dispute between Martha-Ann Alito, the justice's wife, and neighbors who had placed an anti-Trump sign featuring an expletive on their lawn. In the days the flag was hanging upside down, the Supreme Court was hearing arguments on whether to consider a challenge to the 2020 election. Alito ended up in the minority of justices who wanted to take the case on.

The story is the second ethics controversy related to one of the Supreme Court's conservative justices and January 6. Justice Clarence Thomas has faced calls to recuse himself from such cases because his wife, Virginia Thomas, was directly involved in legal efforts to overturn the election results.

Today, we're going to break down some arguments from the left and right about the story, then my take.


What the left is saying.

  • The left views the story as further confirmation of the court’s partisan ethics crisis. 
  • Some say Alito's explanation for the incident is unconvincing. 
  • Others question Alito’s judgment, even if the story was nothing more than a neighborhood dispute. 

In The New York Times, Jesse Wegman said “Alito’s inverted flag epitomizes the ethics crisis at the court.”

“For a guy who earns his paycheck evaluating the quality of arguments, Justice Alito is remarkably bad at coming up with ones in his own defense. Even if he had no role in raising the flag, what stopped him from taking it down immediately and apologizing profusely for his wife’s intemperance,” Wegman asked. “Doesn’t his failure to do so suggest tacit agreement if not outright support — not only for a violent insurrection based on a demonstrable lie but also for one of the litigants who was at that time before his court arguing over the election?

“This disregard for the appearance of bias is in line with how Alito and Justice Clarence Thomas, in particular, have long approached their job and the enormous power they wield,” Wegman added. “Yes, other justices have revealed their political biases over the years. In 2016 the Times editorial board called out Justice Ruth Bader Ginsburg for referring to Trump as a ‘faker,’ comments for which she quickly expressed regret. I’m not holding my breath for any comparable avowal of humility from Alito.”

In Slate, Dahlia Lithwick and Mark Joseph Stern called Alito “the smallest justice who ever lived.”

“We can certainly quibble (and Alito’s defenders surely will) about whether an upside-down flag really represents ‘Stop the Steal,’ as [reporter Jodi] 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.”

“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,” Lithwick and Stern wrote. “When Alito throws his wife under the bus… 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.”

In Bloomberg, Stephen L. Carter wrote “even if Alito is right, the upside-down flag was wrong.” 

“Even if we don’t actually believe in the entire impartiality of the judiciary, we’re still better off with the expectation that judges will behave as though they’re not taking sides. Thus the newsworthiness of the initial interpretation by neighbors that the Alitos, by inverting their flag, were sending a pro-MAGA message,” Carter said. “Let’s suppose that Alito’s tale is correct, and what was really happening was the suburban front lawn equivalent of an online flame war. Nevertheless, the inversion of the flag remains a problem.”

“The burden that rests upon the spouse of a public official is heavy, and the one that rests upon the spouse of a Supreme Court justice might be weightiest of all. Even if the significance of the inverted flag has been misconstrued, those restrictions remain the same,” Carter wrote. “Nobody’s forced to serve on the Supreme Court, and members of the justices’ families should know what they’re getting into. The rules are harsh, but we need them if there’s any hope that the system will work. So whether the neighbors or the Alitos have the story right, inverting the flag was a terrible mistake. It shouldn’t have happened.”


What the right is saying.

  • The right defends Alito, calling the story a ginned-up controversy. 
  • Some criticize the left for their politically driven attacks on conservative justices.
  • Others say the story has been blown out of proportion. 

The Wall Street Journal editorial board wrote “the left finds another reason to find fault with Justice Samuel Alito.”

“Flying an inverted flag is appropriate only as a sign of dire distress or extreme danger. It was a particular mistake in this case given the political context, not least because it handed Justice Alito’s enemies another excuse to beat him up. But the Justice’s explanation sounds plausible,” the board said. “The Times’s story teed up liberal ethicists to portray the episode as a grave judicial offense. CNN and other voices hostile to the conservative Justices piled on. The left wants to tarnish Justice Alito’s reputation, as well as cause him to recuse himself from participating in any case involving Mr. Trump.”

“Keep in mind, too, the double standard that has long prevailed in Washington and in the press about the Court. No Justice in our memory was more overtly political than the sainted Ruth Bader Ginsburg,” the board added. “We don’t like to highlight this about the late Justice, but the press was never up in arms about her political indiscretions. As for the current conservative Justices, they will never stop being targets of the political left, and so they will have to be careful even about how they fly Old Glory on the front lawn.”

In RedState, Jim Thompson criticized the left’s “attempt to smear” Alito. 

“The New York Times was the first to ‘break’ this story. Unsurprisingly, the amateur photo of the upside-down flag was almost certainly taken with a cellphone camera. It happened almost four years ago. At Samuel Alito’s home, an American Flag was raised on a flagpole upside down. I couldn’t find any mention of this from January 2021. Not a word. It was clearly kept in the quiver for later use. Like, now. And, the New York Times dutifully obliged.”

“Alito’s family has been harassed for quite literally years. His neighbors have shown allegiance to the nutty left and have been part of the mob harassing Alito and his family. Neighbors have created yard signs with invective-laced messages pointed at Alito’s house. It is reasonable to assume that Alito’s wife had had enough,” Thompson wrote. “ It didn’t matter that it was 11 days after the Capitol riot – clearly attenuated from that event. It didn’t matter that Alito said he didn’t have anything to do with the flag being raised. The Times found an ‘ethics’ hack to speculate.”

In Reason, Josh Blackman described the incident as a “neighborly spat elevated into a conspiracy-theory.”

“During Justice Kavanaugh's confirmation hearing, one of his former clerks was seated behind him. And, on camera, she made an ‘okay’ symbol with her hands. Then came the outrage. Critics of Justice Kavanaugh charged that the ‘okay’ gesture was actually a symbol for white power. This suggestion was preposterous,” Blackman said. “That background brings me to the latest conspiracy theory involving a Supreme Court Justice… The story goes on to explain how flying the American flag upside down was some sort of message for ‘Stop the Steal.’ What is the proof? Random social media posts!”

“Is there any evidence, whatsoever, that Justice Alito or Martha-Ann Alito, intended to fly the flag upside-down as some sort of secret signal to overturn the election? Of course not. My guess? Mrs. Alito used the upside-down flag as a symbol of distress to clap back at her neighbors. Justice Alito indicated that the attacks were ‘personal,’ and his wife felt helpless to respond. In any other context, this sort of feud would, at worst, start a flame war on Facebook. But when you're married to a Supreme Court justice, the flap makes the New York Times three years later.”


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • It’s easy to criticize the Times story, but an upside-down flag at a Supreme Court justice’s house is actually notable.
  • That both Justice Alito and his wife Martha-Ann were unaware of the symbol’s relation to the “Stop the Steal” movement is a little hard to believe.
  • This whole episode invites valid criticism of Alito and adds to suspicion of bias at the court, but I don’t think it meets the bar for future recusals.

I think both of these competing thoughts can be true: First, this was very likely a run-of-the-mill dispute between Martha-Ann Alito (who may have not grasped the deeper meaning of the flag symbol) and an anti-Trump neighbor. Second, even if Justice Alito had nothing to do with this act, it's still quite problematic.

Dunking on The New York Times for their reporting in this case is easy — but it’s a little too easy. Yes, this happened three years ago. Yes, the story relies on an anonymous tip and a single grainy photograph. Yes, The Times clearly sourced their quotes from a series of like-minded "judicial ethics experts," none of whom seemed to question the significance of the story or Justice Alito's involvement. But reporters are tasked with the job of sharing these stories with us, and those criticisms only apply to the reporting itself, not to what the story was reporting.

Actually, a flag flying upside-down outside a Supreme Court justice’s house is a big deal, however petty the story may sound at first. Under the best interpretation of the symbol, an upside-down flag signals danger to other Americans and is still a sign of distress. Under the worst interpretation, Alito is pledging allegiance to the theory that the 2020 election was stolen while the court was considering whether to hear a case challenging the election results. Even taking into account Alito's excuse, I struggle to imagine a world where he saw the flag upside down for several days and didn't notice — which raises all sorts of questions on its own.

I also sincerely doubt that one or both of the Alitos did not know the upside-down flag's symbolism at that time. They are both ensconced in the conservative movement, and the upside-down flag was very closely associated with the “Stop the steal” movement for Donald Trump in 2020. I just find it implausible that they were trying to send a different message and were caught in an innocent misunderstanding (and, of course, the Alitos have never even suggested that — it's an excuse their defenders made up).

Does this rise to the level of an offense that should force Alito to recuse himself from January 6 or Trump-related cases? To me, no. I do think recusals should be far more common than they are now but paradoxically, I also think the bar for recusals should be high. Justice Clarence Thomas, whose wife Virginia “Ginni” Thomas was intimately involved in extensive efforts to overturn the 2020 election results, actually met that bar in my view, and he should have recused himself from cases relating to the 2020 election. Similarly, I was glad to see Justice Ketanji Brown Jackson recuse herself from several cases early on in her tenure. As much as I think Martha-Ann Alito knew what she was doing, I don’t think her having a dispute with a neighbor that ended in an upside-down flag meets that bar.

Still, this whole episode invites a good deal of scrutiny of Justice Alito, and the court in general. Remember: The Supreme Court's authority, more than anything else, rests on trust in the institution, and every year the political overtures from Supreme Court justices seem to worsen. Ruth Bader Ginsburg caught flak for it in 2016 when she called Trump a "faker," comments she expressed regret for. Justice Sonia Sotomayor has faced her own ethics issues. Thomas and Alito have never been shy about their politics (though I wish they were), while Justice Brett Kavanaugh's ugly confirmation hearing seems to have turned him against the left.

Americans see these controversies and leanings, and they judge the court to be increasingly divided along predictable political lines, eroding trust in the court more than ever. A wholly avoidable event like this only worsens the climate. For that, Alito deserves criticism and owes the country an apology. But I doubt anything he says now is going to calm the fears of Americans who believe his jurisprudence is politically captured.

Take the survey: What do you think of the Alito flag controversy? Let us know!

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Your questions, answered.

Q: I don't like Trump or Biden but I will be voting for Biden on the grounds that he is the lesser of two evils. Would you ever write a piece on this concept? I'll elaborate. Would you ever write a piece on how Americans, who don't like either candidate, are deciding who to vote for? This is different than Americans who are undecided or don't care about voting, either. This would be about Americans who dislike both sides yet feel a duty to vote.

— Jack from Philadelphia, PA

Tangle: I know you’re asking if I’d ever write a piece about people who don’t like either party and are choosing the lesser of two evils — not just undecided voters — but to be honest, I think that’s what an undecided voter is for this upcoming presidential election.

In our podcast series The Undecideds, we’re following five voters who haven’t made up their mind in the upcoming election. Those undecideds are an immigrant left-leaning voter in California, a retired centrist in Florida, a retired pastor in Pennsylvania, a recent college graduate in Ohio, and a conservative Christian in North Carolina. They’re all very different people that come from different walks of life and have different political ideologies, but their perspectives all share one thing: A deep antipathy for the choices produced by the two major political parties this year.

So I could write that piece you’re asking about, but I think you’d be better off just listening to that podcast. 

On top of whatever our undecided voters say in that podcast, I’ll just add this quick thought: I think choosing not to vote for one of the two major candidates is totally reasonable, and if you think another candidate better fits what you want out of a president, you shouldn’t be afraid to give that person your vote.

We recently released Episode 3 of The Undecideds podcast series, and you can listen to it here. And you should! Most of the reviews we’ve gotten so far have been positive, and I think anyone who reads the Tangle newsletter would really enjoy it.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Under the radar.

The United States and Saudi Arabia continue to quietly discuss a security deal that would include the normalization of Saudi relations with Israel, the approval of weapons deals between Saudi Arabia and the U.S., the ability for Saudi Arabia to enrich uranium in pursuit of a potential nuclear weapon, and the establishment of a Palestinian state. According to Saudi officials, a "semi-final" proposal was put on the table by both sides, and National Security Adviser Jake Sullivan just met with Saudi Arabia's Crown Prince Mohammed bin Salman. Saudi Arabia has historically called for an independent Palestinian state with Israel's 1967 borders and East Jerusalem as its capital, a plan that seems unlikely with Prime Minister Benjamin Netanyahu in power. Times of Israel has the story


Numbers.

  • 18. The number of years Samuel Alito has served on the Supreme Court. 
  • 0. Alito’s net favorability rating, according to a February 2024 survey from Marquette Law School. 
  • 54%. The percentage of Americans who said they favored Alito’s confirmation to the court in 2006, according to Gallup. 
  • 52%. The percentage of Americans who believed Alito’s views on important issues were in the mainstream in 2006. 
  • 44%. The percentage of Americans who believed Alito would not vote to overturn Roe v. Wade in 2006. 
  • +8. The percent increase in Americans who said the Supreme Court is too conservative between 2006 and 2023. 
  • -1. The percent decrease in Americans who said the Supreme Court’s ideological leanings are “about right” between 2006 and 2023.

The extras.


Have a nice day.

Short-term rentals (STR) have given plenty of convenience to travelers finding places to stay in different cities, but often at the expense of livability in the neighborhoods that host them. But many U.S. cities are finding ways to control the trend. In September of 2023, New York City implemented new requirements that capped the total number of short-term rentals and required STR operators to be primary homeowners. The changes aren’t only working in New York, but have been found to work all across the country — research points to the dramatic positive impacts policies like these can have, including lower rents and the promise of a sustainable tourism economy. Reasons to Be Cheerful has the story.


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