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.
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It’s a hipster Gadsden. Big with the freeper set.
Glad to see Blackman is still helping!
I stopped flying the Gadsden after it became associated with a specific political faction.
Because I want to keep factional politics out of my work and social life.
I'm baffled that these people, at the pinnacle of a career that asks them to be impartial, just can't be bothered.
Don’t you dare let that slow you down!
How do you in figure? Washington DC authorized same sex marriage by statute. Why does assisting someone in exercising the available options under that statute suggest anything about whether or not that option is constitutionally required?
Ginsburg's political views were well-known, and she ruled in accordance with those views.
Same is true of Alito.
I think the point is that it is irrelevant.
Yes, that's the point.
The rest of the point is that Ginsburg nevertheless didn't recuse and her supporters didn't call on her to recuse so those same people are hypocrits when they now call for Alito to recuse.
Roger S 11 hours ago
Flag Comment
Mute User
Ginsburg’s political views were well-known, and she ruled in accordance with those views.
Ginsburg's opinions and dissents were often heavily sprinkled with her policy preferences.
Encinio Motors dissent was very much an expression of what she wanted the law to be, not what the law was.
Same with ledbetter v goodyear. What she wanted the law to be, not was the statute was.
ACA - the dissent that became the concurring opinion. First 4-6 pages on why she thought the policy was good.
It demonstrated she was not a gay-bashing bigot, which was enough to trigger conservative bigots.
What is it that triggers you, to post your brand of bigotry, Artie?
This is exactly right. That Justice Ginsburg was willing to preside at a statutorily authorized same-sex wedding does not indicate whether she believes that there is a constitutional right to gay marriage. Publicly demonstrating that she was not morally opposed to same-sex marriage is not the same as publicly signaling her position on the legal, constitutional question at issue in Obergefell.
Bingo.
I don't think there was ever a serious argument that the Constitution banned same sex marriage.
What's flag-signal for "my rulings are available to be determined by the highest bidder"?
That would be every statist flag ever dreamed up.
Is there a Clarence Thomas flag?
Perhaps, but Clarence Thomas is pretty much the last Supreme Court justice who I'd suspect of changing his opinions for money. He was already a reactionary when Reagan put him in charge of the EEOC.
They don't pay Clarence Thomas to change his opinion; they pay him so that he won't retire. Now they have to outbid John Oliver, but I don't expect there will be any difficulty there.
Yes, that's the much more plausible theory.
I feel like this scans better in the original 18th century courtier-French. Without a tongue up Alito's ass.
I think it far more likely that she was trying to signal distress with her neighbors.
This is the most bankrupt thing you’ve ever said.
If you actually think that, you’re much much stupider than ChatGPT 3.5. Retire now and let the South Texas College of Law Houston save some money and improve their educational outcomes by replacing you with an autobot.
You are reading a lot into a flag. He can fly any flag he wants.
The Trump Derangement Syndrome has pizened Randal's brain.
Of course he can fly any flag he wants. And everyone else is allowed to discuss the message he is trying to convey with the flag, whether it’s appropriate for someone in his position to spread a particular message/hold those views, and its implications for future cases.
And then everybody is entitled to roll their eyes at the discussion. Which is what I'm doing.
That might just be the disaffectedness and autism generating one more abnormality.
Shut the fuck up about autism.
Roll harder! That'll make it go away!
Seriously. Why are we pretending like flying a flag upside is any kind of normal reaction to a neighbor using profanity? If true, that is some of the more bizarre behavior I've ever heard of. I think the partisan explanation significantly more likely.
Exactly. "What did you call me? I'll show you, I'm gonna march right home and fly my American flag upside down!" Happens every day in Joshworld.
It's pure gaslighting.
Correct use of gaslighting! Fireworks explode! Can't you hear the fireworks? I can hear the fireworks. What do mean there are no fireworks? Everybody's hearing the fireworks, what's wrong with you?
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.
I can infer Alito was aware of the flag flown upside-down. Alito has a security detail, to keep an eye on him at home.
Security: “Holy crap, dispatch, the Alito’s are flying a distress signal!
What should we do?”
Dispatch: “Get in there and find out what’s wrong. Do it now!”
Citation that Supreme Court justices have ongoing security details? Or that they might have been temporarily assigned security during the 2020 interregnum?
But let's just say they did...maybe this mythical security detail did get in there, and find nothing wrong. Since there was nothing wrong, the flag display would continue.
Security Guy: "No way, Mrs. Alito. We can't ignore a distress signal tomorrow because you were not in distress today. And anyway, cut it out. You are abusing the flag code. You can't clutter up the emergency channel during a Mayday event. If you have any questions, we will be happy to talk to your husband about them. Or maybe you should talk to him instead."
I'm a little mystified by the whole kefuffle.
There is no canon about having political opinions or expressing them. I thought the no-nos, or rather shouldn't-shouldn'ts were expressing an opinion about a matter before the court. And a specific matter before the court, not some general political topic.
Think about it a little bit. Or maybe ask a middle-schooler. You'll get it eventually.
Some people struggle to recognize or understand interpersonal communication and norms related to human interaction.
"There is no canon about having political opinions or expressing them. I thought the no-nos, or rather shouldn’t-shouldn’ts were expressing an opinion about a matter before the court. And a specific matter before the court, not some general political topic."
As I wrote on an earlier thread, 28 U.S.C. § 455(a) applies to SCOTUS justices: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Note the mandatory word “shall”.) The test is objective, and existence of actual bias is not required for recusal.
It seems to me that flying the American flag upside down during January of 2021, when so-called “stop the steal” groups had co-opted that gesture in support of Donald Trump’s criminal activities, would pose a reasonable question regarding Samuel Alito’s impartiality with regard to litigation involving Trump’s activities and the activities of those who breached the Capitol on January 6.
At the time the upside down flag flew outside Justice Alito’s home, there were petitions for certiorari to the Supreme Court of Pennsylvania pending before SCOTUS regarding whether votes in the 2020 presidential election had been counted in contravention of the United States Constitution, Art. I, §4, cl. 1; Art. II, §1, cl. 2. Donald J. Trump for President, Inc. had moved for leave to intervene as a petitioner. (Cert was denied on February 22, 2021.) https://www.supremecourt.gov/opinions/20pdf/20-542_2c83.pdf
SCOTUS presently has before it on plenary review questions as to the proper scope of application of 18 U.S.C. § 1512(c)(2) regarding the Capitol riot and whether Donald Trump is immune from criminal prosecution for his conduct leading up to the Electoral Count in Congress on January 6, 2021. An objective observer can reasonably conclude that Justice Alito allowing a symbol of the “stop the steal” movement to fly outside his household for several days following the riot reflects poorly on his impartiality. It is the functional equivalent of having posted a “stop the steal” sign in the front yard.
The New York Times article which broke the flag story, https://www.nytimes.com/2024/05/16/us/justice-alito-upside-down-flag.html , observes that employees of the Supreme Court are prohibited from political activity relating to elections contested by political parties, such as displaying signs or bumper stickers or stating positions on social media. The purpose of these prohibitions is no doubt to preserve the dignity and impartiality (both real and perceived) of the Court. What the Court prohibits its employees from doing, it should not indulge its members.
You’re developing a better case, NG, but Mrs. Alito does not sit on the Court.
Mrs. Alito is free to express her political opinion, no?
What is the problem?
Some posters clearly feel that wives should shut up and remain in the background.
Not very 'progressive', but that's how they roll.
Until Justice Alito testifies under oath Mrs. Alito is not safely under the bus.
Why is testimony under oath required, Arthur?
Justice Alito has the duty to avoid the appearance of impropriety. A reasonable observer cannot distinguish whether a flag flown outside Justice Alito's house was put there by him, his wife, or both. Ideally, Ms. Alito would refrain from displaying partisan symbols at their home (I clerked for a female judge, and she and her husband agreed that he would not make such partisan displays while she was in office). But if Ms. Alito is not willing to abide by such a limitation, then Justice Alito had a duty to signal to the public that he was not associated with the partisan display and that it should not be attributed to him.
People really struggle with behaving like adults.
I'd be pissed if my spouse went out of her way to make my job more difficult.
Mrs. Alito demonstrated a lack of impulse control. Ok, maybe your neighbors are left wing nutjobs who irritate you, and you want to rub their noses in the fact that a Justice is flying an obscure right wing flag.
Just. Don't.
Or maybe they're both old and cranky and all out of fucks to give.
so it goes.
Mrs Alito flies a flag; she flies a flag as a form of peaceful protest, for whatever reason she likes. Last I checked, 1A still applies here, protecting political speech. Or is there a special exception for SCOTUS justice spouses where they relinquish their 1A rights?
If Mrs Alito sat on SCOTUS, I'd agree. She doesn't. So the question is moot. Remember, lot of politicos have politically active spouses. I don't hear the braying for recusals. Sorry, y'all set the standard with political spouses, others are just following to precedent already established by our 'bettors'.
Why do so many conservative justices have seditionist wives with bad judgement?
Oh wait I just realized I answered my own question.
Nowhere did I say that Ms. Alito does not have a right to fly the flag to make a political statement or as a form of protest, although I think it is poor judgment. What I did say was that if Ms. Alito insists on flying the flag, then *Justice Alito* has a duty to disassociate himself from that display because a reasonable observer could otherwise attribute it to him. You are attacking a strawman.
Clearly, you are not married, Kords. 🙂
I am! But regardless, the possibility of some marital awkwardness does not excuse Justice Alito from his ethical obligations.
The "problem" is that if Mrs. Alito was indeed simply expressing her political opinion, why did Mr. Alito give an entirely different explanation when the story broke?
Did his wife lie to him, or did he lie to us?
Your problem is, because of your Trump Derangement Syndrome, you’re assuming that's what it is
The standard you cite for recusal doesn’t require what you want it to require. Let’s say (given RBG’s comments about Trump) that Alito himself did say he voted for Trump and he personally didn’t like the irregularities around voting caused by the pandemic. Why would that require him to recuse on any subsequent Trump issue, including for example the section 3 case? If a sitting state judge contributing to Democrat candidates/party orgs isn’t disqualifying, why would that be? Other than you want it to be.
Trump Derangement Syndrome is a helluva drug. Full disclosure: I’ve never voted for Trump and never will.
I think that all federal judges and justices, all members of Congress, and all principal officers in the Executive branch should put their assets in blind trust, or at least in some kind of broad ETF. Likewise, I think all judges and justices should generally avoid speaking publicly about anything more controversial than the merits of sliced bread. But I agree that that's not currently the law.
https://reason.com/volokh/2024/05/19/indiana-court-rules-burritos-and-tacos-qualify-as-sandwiches/
I agree with this.
Unfortunately, judges are appointed by politicians. And judges need some way of signaling which team they are on.
I'm not sure that court opinions offer much avenue for this until they are already appellate judges.
And then having been run through the meat grinder two or three times for their personal opinions, a Justice might be ready to let their true freak flag fly.
Unfortunately, judges are appointed by politicians. And judges need some way of signaling which team they are on.
They aren't supposed to be on a team. Remember, CJ Roberts even said that they were just supposed to be umpires, calling "balls and strikes."
But you are correct, they are appointed by politicians that absolutely are on a team. They will want their appointees to be on their team, and the legislators voting on whether to confirm them will want those judges to be on their team. Or, at least not too much on the other team.
In my opinion, that has been the failure of judicial nominations and the confirmation process. They've let Presidents nominate people more and more obviously partisan and ideological. Senators want it that way, though. Which means that the reliable primary voters of their parties want it that way.
Um, Josh? There’s a big difference between being an observant Christian and a push to remake American government in Christian terms.
The former is, of course, totally fine. I thought, for example, the attacks on Barrett's Catholic faith were unfortunate and misplaced.
But the latter will cause major problems… for you more than me! Are you really this insanely stupid? Signs point to yes.
Could you clarify a bit exactly what you mean by "remake American government in Christian terms"?
Because the possibility that a policy preference derives from religious vs secular motives doesn't disqualify it as a policy preference, or deny the person having that preference from trying in the political arena to get their preferences implemented into law.
It's not even a clear distinction, given that a lot of "secular" belief systems are religions in all but name.
What's actually constitutionally prohibited is religious discrimination, not religious motives for policy.
I don't see too many people marching against government helping the poor because it was born of religious sentiment.
Have you heard of Sharia Law? It the Christian version. Stoning rapists to death, that sort of thing.
If it was your intention to come across looking incredibly stupid or out of touch this evening, Professor, you succeeded. Keep up the good work!
A guy with a 160 IQ pretending to be a dummy…
We are up to two flags associated with and used by disaffected, un-American insurrectionists and anti-government cranks. Partisans will claim not to perceive any connections. The Alitos’ explanations are lacking. Clingers will claim the Alitos have been vindicated.
Among the MAGA types, it will take at least two more flags to completely vindicate Alito's impartiality.
With Alito, there is always more that will be revealed.
Your Bettors are often that way
Ample evidence indicates at least one of the Alitos is every bit the disaffected wingnut and delusional, un-American misfit that Ginny Thomas is. Watching people like Blackman try to defend this should be entertaining.
An interesting and striking flag, with a distinguished place in the Revolutionary War. Looks great! Why wouldn’t you fly it in honor of our country?
Appeal to Heaven is a call-out to Locke, not a theocratic slogan.
Credulous clingers are among my favorite culture war roadkill. These bigoted hayseeds can’t be replaced too soon.
Wah wah wah Wah-Wah wah.
That's what I thought about Betsy Ross flags, Don't Tread on Me flags, and Ok signs. What idiot groups are sticking their fingers into them to reappropriate them.
| I’m not sure if the Alitos have taken class on flag semaphore.
Justice Alito was literally an officer in the signal corps.
I'm older than Alito and was in the Signal Corps. No one taught semaphore in the Army during the Viet Nam era. Maybe in the Navy.
“It is true enough that Ginsburg apologized for her comments about President Trump, but he did not recuse in Trump-related cases that turned on his conduct during the election.”
Generally enjoyed article, noticed a typo: missing S in She.
GS
"What those messages are, exactly, I do not know."
"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."
Josh Blackman, folks: Scholar; Professor; Media Darling.
Perhaps Justice Alito will be provided an opportunity to dispel confusion and misapprehension under oath.
Most people seeing that flag would think, "Oh, the guy really likes trees."
But IYKYK amirite?
I see all of the "ok" hand gesture = secret white power supporter people have found something new.
Wait until they find out what happens when you play rock and roll music records backwards.
If you play "666, the Number of the Beast" backwards, it sings Amazing Grace.
I think both sides of this — acting from virtually no information¹ — are being silly. Claiming he was expressing support for J6 without any evidence — I have not encountered a single person who had ever heard the notion that the flag was a J6 symbol before yesterday's NYT piece — is wrong. Claiming that it can't possibly mean anything at all other than that Alito is a big fan of George Washington is also wrong.
¹Has he been flying it regularly for 20 years? Did he just start flying it in the last couple of years? I don't know, you don't know, the NYT doesn't know.
Seems to me that someone claiming that it has a nefarious meaning has the burden of proof. Especially when a symbol or gesture is obscure or has multiple meanings.
Like the OK symbol. There has been a lot of outrage about certain people using it to express white supremacy. But it has long been understood to mean that its alright (OK), and I would wager most people who see that think that's what it means.
And while how long Alito or anyone else has been using a symbol might be probative, it's not dispositive. People learn new things all the time.
Yes and no.
I think if he had been flying it for 20 years, it would say little about him flying it in Feb 2021.
But if he's really a flag hobbyist, he'd know by May 2024 the current usage.
It's a common theme: The left just can't accept that they're not entitled to dictate what other people mean by things. That they're not entitled to assign meanings to ordinary everyday words and symbols, and then other people must stop using them if they've assigned an offensive meaning to them.
You see it over and over. Words, hand gestures, and flags: The left think that they get to say what other people mean by them, and what the other people think they mean just doesn't matter.
I don't think they're every going to admit they don't control the language. But that's fine, we'll just continue mocking them.
Bellmore, that old, "You can't tell what's in my heart," dodge is the long-time bigot's best friend. Problem is, everyone can tell what the bigot's outward manifestations of bigotry suggest, and note the bigot's refusal to heed objections—including objections from people the bigot wants harmed. At that point, what is in the bigot's heart ceases to matter. Those outward actions have transformed the purely internal sin of bigotry into the socially destructive and objectively observable practice of racism.
That old, "Yes, I can tell what is in your heart" insanity.
You don't get to declare that using a perfectly normal word is a sign of bigotry, and then everybody has to stop using it to prove they're not a bigot. You're just not in charge of the language that way, and the sooner you stop thinking you are, the better.
If you choose to use an offensive word, you're choosing to be offensive.
"I'm sorry you're offended."
It's possible, though unlikely, that someone intentionally referring to a woman as "he" isn't a bigot. But they're definitely an asshole.
Oh, I agree. Now, calling a delusional guy "he" despite his claiming to be a girl? That's quite another matter.
The fact that you’re proud of it and gloating about it in public makes you an ass squared hole squared. Or refactoring a bit, a whole-ass asshole. That’s when you’re such a big asshole that there’s actually no ass left, just hole.
Bellmore, I am not even concerned about bigotry. So long as it remains private and personal, as you insist, then it is nothing worse socially than any other personal sin. Indeed, I have known plenty of bigots—mostly relatives of mine from a generation now gone—who were aware of their own bigotry, and struggled against it, thinking it was sinful. I always felt they should be honored for that.
Racism is another matter, and although it may coincidentally coincide with personal bigotry, there is not any connection necessary between them. Plenty of politicians who were not personally bigoted have practiced racism to gain political advantage, sometimes despite having to fake bigotry from time to time to do so. That kind of thing is public, and on the basis of public utterances and policy decisions, we are all entitled to draw reasonable inferences, and respond accordingly. You get no pass for racism by claiming it is mere undetectable bigotry.
We may not know what message the Alito's were trying to send with their flag-flying activities, but we do know that the explanations they have thus far provided are preposterous.
If you cannot see that, you are a Republican.
This has been an issue ever since that poor Southwest Airlines stewardess said “Eenie meenie miney moe” to get her passengers to hurry up and get seated, and was put through hell as a result.
The haven't really *said* what they were supposed to actually mean, have they?
I went to Pubic Screw-els in California and Ali-Bama and knew about the Pine Tree Flag, the "Appeal to Heaven" is from Locke,
"And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, then they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior power, to determine and give effective sentence in the case; yet they have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, viz. to judge, whether they have just cause to make their appeal to heaven"
Frank
Sometimes the upside down flag isn't a sign of distress, but of stupidity. Remember when a bleary eyed Corpse-man(HT Barry Hussein) did that at Bethesda Naval, the Hospital Commander was not pleased.
Frank
So Kirkland and his cronies can have a read closer to their taste, here's WAPO's take. Be sure to read the comments if you want something that makes even them look sane.
https://www.washingtonpost.com/politics/2024/05/23/new-alito-flag-report-triggers-fresh-democratic-outrage/
Only Democrats are capable of expressing opinions and maintaining their impartiality.
Josh working double time to carry water for the alitos.
“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.” Shoulda stopped there, Josh.
These people are fundamentally unserious trolls (and that’s the charitable interpretation!!)… the problem is— one of them is one of the nine most powerful people in the country. Seems problematic.
One of nine?
That number may change.
It could be a reference to the Massachusetts Naval Militia.
https://en.wikipedia.org/wiki/Massachusetts_Naval_Militia
When Massachusetts officially added that flag to its warships, it was a Congregationalist state with local churches supported by tax money.
Ergo, it is a theocratic flag.
Also, the Naval Militia's major engagement in the Revolution was a catastrophic failure. Ergo, it's an unpatriotic flag.
Glad to clear all this up!
'"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.'
They are all in perfect political alignment.
This feels like falling down into a QAnon rabbit hole while trying to determine how many angels can dance etc. Pointless.
Nevertheless, people who watched Tommy Lee Jones in "The Valley Of Elah" can certainly be pardoned for coming to believe that the upside-down flag signals grave national distress, as caused by our invasion of Iraq for example. Personally, I always put postage stamps upside down on anything I mail, and I will continue to do so until Donald Trump is either put behind bars or exiled to any country that might have him.
Also, people who watched the docudrama movie "Jesus Camp" can certainly be pardoned for coming to believe that Alito is a darling of right-wing evangelicals. Near the end of the movie a busload of them are fervently praying for his elevation to SCOTUS.