The Volokh Conspiracy

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Flagpole to Heaven


I've learned a few things this past week about the Alitos. It seems that they have flag poles at their homes, and use flags to convey messages. I'm not sure if the Alitos have taken classes on flag semaphore. What those messages are, exactly, I do not know.

At the Alito home in Virginia, Mrs. Alito flew the flag upside down as part of some neighborly spat. Was this some sort of secret symbol that Martha-Ann was trying to stop the steal? There is no actual evidence of this, but countless news stories, and politicians, accepted this insinuation as obvious. I think it far more likely that she was trying to signal distress with her neighbors.

Last summer, at the Alito home in New Jersey, an "Appeal to Heaven" flag was flown. I had never heard of this Pine Tree Flag before. The flag traces its roots to George Washington's Continental Army in 1775. (Before you read Wikipedia, review the changes made in the past 24 hours.)

According to the New York Times, the flag can now be seen as "a symbol of support [1] for former President Donald J. Trump, [2] for a religious strand of the 'Stop the Steal' campaign and [3] for a push to remake American government in Christian terms." A bit of a hodgepodge to be sure. Did Mr. or Mrs. Alito choose to fly this flag to "stop the steal" nearly three years after the election? That seems a stretch. Again, there is no actual evidence of this, but countless news stories, and politicians, will accept this insinuation as obvious.

I think it is far more likely that the Alitos used the flag to convey some sort of message about religion. Exactly what, I'm not sure. But let's assume that Justice Alito personally chose to fly this flag. Here, at least, he did not blame his wife, so we might infer that he was aware of the flag. Much of the New York Times articles focuses on whether Alito should recuse from any Trump-related case. But I'm surprised they missed a more obvious angle: if Alito is trying to endorse some kind of Christian nationalism, shouldn't he recuse in all Free Exercise and Establishment Clause cases? Why limit the recusal attacks to the election cases?

If you'd like to go down that road, there is plenty of other evidence you can use. Justice Alito has publicly attended mass at various churches throughout the country and given speeches that lamented how religious liberty has come under siege. Forget cryptic symbols about an arboreal flag. Alito has been quite overt with his views on the topic.

I know it is gauche to talk about Justice Ginsburg, but I will. In August 2013, she made headlines by being the first Supreme Court Justice to preside at a same-sex wedding. In January 2015, the Supreme Court granted cert in Obergefell v. Hodges, and in June 2014 Justice Ginsburg joined a majority opinion that found a right to same-sex marriage somewhere in the penumbras of the Fourteenth Amendment. The act of marrying a same-sex couple, far more than a cryptic flag, signaled Justice Ginsburg's views on the topic. She did not recuse. It is true enough that Ginsburg apologized for her comments about President Trump, but she did not recuse in Trump-related cases that turned on his conduct during the election. (Mark Paoletta makes these points in WSJ.)

The Times article observed that today, the Alitos' flagpole to heaven was "bare." Maybe they can still whisper their thoughts in the recesses of their homes.