Justice Samuel Alito, in a letter to Democratic senators on Wednesday, gave his fullest defense yet of his flag-related brouhahas. Some of his explanations are persuasive. Others are not. And as it happens, his defense is at odds with an opinion he himself wrote in a flag controversy in Boston that the Supreme Court ruled on two years ago.
The New York Times reported in recent weeks that two politically charged flags flew outside Alito’s residences: an upside-down American flag outside his D.C.-area residence soon after the January 6 attack on the Capitol, and an “Appeal to Heaven” flag outside his family’s Long Beach Island vacation home last summer.
Some observers saw the flags as an expression of sympathy with the election denialists whose actions led to January 6 and called for Alito to recuse himself from two cases related to those events: a challenge to some January 6 sentences, and former President Donald Trump’s immunity case. In a letter to Democratic Senators Dick Durbin and Sheldon Whitehouse on Wednesday, Alito laid out his full version of events and said they did not justify recusal.
The Supreme Court’s Code of Conduct, which it formally adopted last year, says that justices should disqualify themselves “in a proceeding in which the justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties.” Alito said that both flag-related incidents “[do] not meet the applicable standard for recusal.”
First, Alito told the senators that the upside-down flag was attributable to his wife, not to himself. “As I have stated publicly, I had nothing whatsoever to do with the flying of that flag,” Alito claimed. “I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.” He noted that his wife “possesses the same First Amendment rights as every other American.”
As for the Appeal to Heaven flag, also known as the Pine Tree flag, Alito again attributed the decision solely to his wife. “My wife is fond of flying flags,” he wrote. “I am not.” He noted that his wife flies a wide range of national, international, civic, historical, and patriotic flags, and that he was not aware of the Appeal to Heaven flag’s other meanings when she flew it at their beach house. “She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings,” he added.
I’ll start with the second one. I initially assumed that the decision to fly the Appeal to Heaven flag was an ideologically charged one. It is not a commonly flown flag these days, and when it is flown, it is typically done to express a certain political viewpoint. If flown in isolation, an observer could reasonably assume that it was for its modern political appropriation. That assumption would be stronger if the flag were flown on multiple days, by itself, or on specific days that might be politically significant.
However, if the justice’s wife is a genuine flag enthusiast and she flew the Appeal to Heaven flag in combination with other patriotic and historic ones, then it is more plausible that she flew it for its historical significance. Flying multiple flags always diminishes their individual meanings. Raising an individual Mexican flag or Confederate flag or French flag in Texas, for example, sends a different message than flying the “six flags over Texas” in combination with each other. A reasonable person would also not assume that the United Nations is expressing favoritism for any particular country because it flies all of its member flags outside its headquarters in New York.
Context helps Alito’s case with that episode. But it does not help him with the upside-down flag outside his home. The justice said his wife flew the flag to signify distress—which the upside-down flag signified long ago when hoisted by sailors—with some of her neighbors, one of whom displayed a sign outside their home that personally criticized the Alitos after January 6. According to Alito, one of those neighbors also “berated her in my presence, including what I regard as the vilest epithet that can be addressed to a woman.”
The neighbor disputes some but not all of these details, if you care to read further. (The Times is very much on it.) Nonetheless, the problem with Alito’s defense is self-evident: He had to explain the context to everyone because nobody could discern it on their own. Imagine, for a moment, that you are jogging through the Alitos’ neighborhood on January 20, 2021. President Joe Biden is being sworn in at the Capitol that day. You saw a report that mentioned Alito would not be attending the ceremony. And when you pass by the Alitos’ house, you see the flag flown upside down.
A reasonable observer would not logically conclude that the Alitos are in actual distress—flying an upside-down flag to convey that specific message makes no practical sense in a world where you can simply call 911. The observer would instead assume that it was to signal “distress” in a more emotional and metaphorical sense. Indeed, that is the sense in which Alito claims it was used.
But that same passerby would have no knowledge of the neighborhood disputes that purportedly led the justice’s wife to raise it in the first place. It’s not like there was a large sign outside the house explaining that particular reason for flying it. Instead, it would have been more understandable if someone thought they were raising a distress flag as a form of political protest—whether in sympathy with the “Stop the Steal” crowd or just generally against the incoming Biden administration.
The justice knows how public perception of flags works because he has written about it in his official capacity. Two years ago, the Supreme Court heard a flag-related case known as Shurtleff v. Boston. For many years, the city of Boston had a program for flying flags from private citizens outside City Hall alongside the national and state flags. In 2017, the city rejected a request from local activist Harold Shurtleff to fly a Christian flag as part of the program, citing the establishment clause.
Shurtleff sued the city on First Amendment grounds and argued that the city had engaged in viewpoint discrimination by refusing to fly his flag, despite flying other citizens’ flags. Boston argued that the decision to fly it counted as government speech and was therefore not constrained by the First Amendment. The Supreme Court unanimously sided with Shurtleff that the flag-flying program reflected private speech in a public forum and therefore fell under the First Amendment’s requirements.
Alito wrote separately to say that he concurred with the court’s ultimate decision but not with how it reached it. Justice Stephen Breyer, writing for the majority, looked to three factors to decide whether this expression—and future ones—counted as government speech: “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.” Because Boston had a history of flying other citizens’ flags, a bystander likely would conclude that flying the Christian flag was a private person’s speech, not Boston’s. And because Boston had not previously denied this form of expression, its denial of Shurtleff violated his free speech rights, the court concluded.
Alito rejected all three of these factors—most importantly, in the context of this week’s flag flap, the one pertaining to public perception. “Unless the public is assumed to be omniscient, public perception cannot be relevant to whether the government is speaking, as opposed [to] merely appearing to speak,” he wrote.
He and Breyer both acknowledged that, without further context about the Boston program, the public was likely to conclude that it was government speech. “As the Court rightly notes, ‘[a] passerby on Cambridge Street’ confronted with a flag flanked by government flags standing just outside the entrance of Boston’s seat of government,” Alito wrote, “would likely conclude that all of those flags ‘convey some message on the government’s behalf.’”
Alito, by his own admission, realized that flying the distress flag at his Virginia home was a mistake. Once he noticed it, he said that he told his wife to take it down and that she refused. In Alito’s telling, “There were no additional steps that [he] could have taken.” (It is unclear why he didn’t simply take it down himself.) In any event, he likely recognized that while his wife had every constitutional right to fly a flag of her own choosing on their jointly owned property, the public’s lack of omniscience meant that a passerby would likely attribute it to him. Given his exalted position in American governance, that would be inappropriate.
Does any of this mean Alito should recuse himself from the January 6–related cases? Perhaps not, but the question itself doesn’t seem to matter. In his letter on Wednesday, Alito engaged in some subtle rewriting of the Supreme Court’s ethics code to tilt things in his favor. “I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal,” he wrote.
That is not what the court’s code says. It only mentions “an unbiased and reasonable person who is aware of all relevant circumstances.” By reworking it, Alito suggested that anyone calling for his recusal in this situation is trying to engineer specific outcomes on the court. Under this upside-down articulation of the court’s ethics code, the burden of proof is not on the justice who is supposedly bound by it but on the justice’s critics to show they can question his impartiality in the first place. The message here is simple: Alito will do whatever he wants, and there’s nothing that anyone else can do about it.
