Alito’s Explanation for the Upside-Down American Flag Honestly Makes It Worse

We have known for some time now that the current Supreme Court is not comprised of “conservatives” and “liberals,” or even “jurists” and “reactionaries.” It has split into those who care about the future of the court and the country, and those who do not.

Because the group that cares is much larger than the one that doesn’t, its members could have at any time done many things to signal to the latter group —and we can go ahead and name them, Clarence Thomas and Samuel Alito—that accepting lavish, undisclosed gifts and vacations from billionaire donors who have interests before the court was a rolling, public-confidence-and-democracy-threatening disaster. They said nothing, even as this sordid conduct degraded the nation’s highest court, for many of the reasons powerful individuals often say nothing: To protect the institution at large; to preserve the long-tarnished myth of a collegial court; and because, when there is nothing to be done about it anyhow, what’s the point?

In a sense, then, nobody should be all that surprised by Jodi Kantor’s bombshell reporting on Thursday night about the upside-down flag that hung outside the Alitos’ home in suburban Virginia in the days after the Jan. 6 insurrection. The symbol of support for the attempted coup flew during a time when the court was considering cases seeking to set aside the election results. Alito has confirmed that this flag display happened. Multiple neighbors and Supreme Court employees have corroborated the reporting.

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.

Every one of the Supreme Court’s nine justices is well aware of the recusal statute that binds federal judges and the ethics code that, even in 2021, they purported to consult and follow. Even then, before SCOTUS produced its own totally voluntary, never-say-never ethical guidelines in 2023, 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.

This is a low bar to clear. 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.

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.

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 SCOTUS 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.

The justice’s perpetual victimhood mentality, which shines through in his opinions and interviews and myriad grievance-laden speeches, has now literally reached his own front yard. The Alitos are not here fighting some vitally important civic-minded battle about the nature of freedom or democracy. No. This is, as Alito concedes, just payback because of a lawn sign and a bad word. Presumably, fourth-period detention and a note home to the neighbors’ parents were not an option.

Justice Clarence Thomas, who at a judicial conference last week complained yet again about how loathsome Washington, D.C., has become, is also the king of the petty grievance: “It’s a hideous place, as far as I’m concerned,” he said of the District. “Because the rest of the country,—it’s one of the reasons we like RVing—you get to be around regular people who don’t pride themselves in doing harmful things, merely because they have the capacity to do it.” The super-luxury RV, financed by a wealthy friend—that is the solution to Thomas’ persecution and heartache? It’s the cause of our own.

This is the hill Thomas seeks to die on, then? His hurt feelings? That ethics experts, and indeed the American public, might find it problematic that Thomas’ wife could enthusiastically participate in efforts to delegitimize Joe Biden’s 2020 election win and support and attend the “Stop the Steal” rally at the ellipse on Jan. 6 is an outrage he must elevate over the court itself?

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.

Perhaps the saddest line in Kantor’s reporting is this one: “The half-dozen neighbors who saw the flag, or knew of it, requested anonymity because they said they did not want to add to the contentiousness on the block and feared reprisal.” Even his neighbors didn’t want to complain about Alito’s “Stop the Steal” flag, both because there’s no possibility of accountability, and also because they fear reprisal. This, right here, is the reason we create accountability: because without it, we are hostages to the unaccountable. This is also the reason Chief Justice John Roberts will say and do nothing about Martha-Ann Alito’s MAGA flag stunt; and the rest of the justices will say nothing about it; and also the reason that parties that litigate Jan. 6 cases before Thomas and Alito will never raise it. Mention that this is rank lawlessness and you become one of the nasty bullies. Payback only ever flows in one direction.

Just last month, the court heard two such cases. One would overturn hundreds of Jan. 6 convictions while undermining the indictment against Trump for election subversion. The other would immunize Trump from criminal prosecution for his role in the insurrection. Big surprise: Alito loudly and angrily defended the former president in both. He can act like a brain-poisoned hack on the bench for the same reason that he can shrug off his own household’s association with the most dangerous and demented MAGA conspiracy theorists: There will never be consequences for his offenses. And we all make ourselves perpetually smaller to accommodate that concession.