The Volokh Conspiracy

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Fringe Theory About Justice Alito

A neighborly spat elevated into a conspiracy-theory to disqualify Justice Alito.


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. The former clerk was Mexican on her mother's side, and Jewish on her father's side. She had never even heard of this apparent hate symbol–nor had I. But that didn't stop conspiracy theorists on the left from attacking then-Judge Kavanaugh.

That background brings me to the latest conspiracy theory involving a Supreme Court Justice. Jodi Kantor of the New York Times reports that outside the Alito household, the American flag was flown upside down in late-January 2021. (Not that it matters, by that time, the outcome of the election was already settled.) The headline blares, "At Justice Alito's House, a 'Stop the Steal' Symbol on Display."

What happened?

Around the 2020 election, a family on the block displayed an anti-Trump sign with an expletive. It apparently offended Mrs. Alito and led to an escalating clash between her and the family, according to interviews.

Justice Alito, contrary to his usual practice, actually commented on the story:

"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 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!

A flood of social media posts exhorted Trump supporters to flip over their flags or purchase new ones to display upside down.

"If Jan. 6 rolls around and Biden is confirmed by the Electoral College our nation is in distress!!" a poster wrote on, a forum for Trump supporters, garnering over a thousand "up" votes. "If you cannot go to the DC rally then you must do your duty and show your support for our president by flying the flag upside down!!!!"

Well if it is on, that must make it legit!

Anyone who has clerked in federal district court is familiar with the fringes on the flag. The so-called sovereign citizens insist that a flag with fringes proves that a court is in fact a military court. (In one of the cases I worked on, a person brought a federal suit to block enforcement of a parking ticket on the grounds that he was a sovereign citizen and had ambassadorial immunity.) It is a fringe theory, figuratively and literally.

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.

Justice Alito's wife, and the other family members of the Court's conservatives, can never find peace:

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. Last Saturday, May 11, protesters returned to the street, waving flags of their own ("Don't Tread on My Uterus") and using a megaphone to broadcast expletives at Justice Alito, who was in Ohio giving a commencement address. Mrs. Alito appeared in a window, complaining to the Supreme Court security detail outside.

She is even being monitored in her window. Why on earth would anyone want this job? Or to be more precise, why would any conservative want this job?

I could waste my time by digging up quotes from Justice Ginsburg about President Trump, but you know the double standard.