The Volokh Conspiracy

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The Old Gray Lady In Distress

To be clear, I am referring to the New York Times.


When Jodi Kantor of the New York Times published her story about the Alitos' flag flap from 2021, I wondered why it took more than three years for the story to surface. Turns out a reputable journalist, Bob Barnes of the Washington Post, investigated the issue at the time, and realized there was no story there. And Barnes was right.

Before I proceed, I pause to note my personal regret that I did not write to celebrate Barnes's remarkable career. He stepped down on December 31, 2023, after seventeen years at the Post. (Bob told me he did not have to write about the Chief Justice's New Year's Eve message.) I recently attended a conference with Barnes, and everyone in the room celebrated his careful and accurate reporting. Bob will be sorely missed.

Justin Jouvenal and Ann Marimow, who both now write about the Court for the Post, provide the play-by-play of what happened:

On Jan. 20, 2021 — the day of Biden's inauguration, which the Alitos did not attend — Barnes went to their home to follow up on the tip about the flag. He encountered the couple coming out of the house. Martha-Ann Alito was visibly upset by his presence, demanding that he "get off my property."

As he described the information he was seeking, she yelled, "It's an international signal of distress!"

Alito intervened and directed his wife into a car parked in their driveway, where they had been headed on their way out of the neighborhood. The justice denied the flag was hung upside down as a political protest, saying it stemmed from a neighborhood dispute and indicating that his wife had raised it.

Martha-Ann Alito then got out of the car and shouted in apparent reference to the neighbors: "Ask them what they did!" She said yard signs about the couple had been placed in the neighborhood. After getting back in the car, she exited again and then brought out from their residence a novelty flag, the type that would typically decorate a garden. She hoisted it up the flagpole. "There! Is that better?" she yelled.

Later that week, Samuel Alito issued a statement to The Post in response to written questions about whether it was his decision to fly the flag and whether it was flown to protest the election results, reflect concern about the state of the country or something else.

"I had no involvement whatsoever in the flying of the flag," he said, using wording almost identical to the statement provided to the Times last week. "It was placed by Mrs. Alito solely in response to a neighbor's use of objectionable and personally insulting language on yard signs."

Knowing what I know about the Alitos, this exchange seems like exactly what would have happened.

Jouvenal and Marimow quote a WaPo spokesperson:

The Post decided not to report on the episode at the time because the flag-raising appeared to be the work of Martha-Ann Alito, rather than the justice, and connected to a dispute with her neighbors, a Post spokeswoman said. It was not clear then that the argument was rooted in politics, the spokeswoman said.

Why did the Post have enough sense sit on the story in 2021, but the Times ran it in 2024? I think the Times had a serious lapse in judgment. Indeed, there was wall-to-wall coverage about a non-story. Here Kantor was so, so eager to make a story happen that she stitched together random tweets and social media posts about the upside down flag, in order to disregard the most likely and natural meaning of Mrs. Alito's acts. To this day, I've not seen a single conservative who had any idea that the upside down flag had anything to do with "Stop the Steal." Even Ann Coulter had no clue!

There is no story here. There never was a story here. How much time have we all wasted on this non-story.

The byline on the story was significant. It did not include any of the Times's Supreme Court reporters. They didn't even contribute to the story. The article was bylined by Jodi Kantor. I view Jodi Kantor in the same light as I view Emily Bazelon. (For those who do not recall, the Times admitted fault when it assigned Bazleon to report on a story about Brett Kavanaugh throwing ice at someone in 1985, after she had critically tweeted about Kavanaugh.) Kantor and Bazelon are both gifted and knowledgable writers with agendas. That's not to say you shouldn't read their work, but you should read with the proper caveats. Indeed, I've talked to Bazelon, but I was far more guarded than if I talked to a news reporter.

The Old Gray Lady is in distress. And to be clear, I'm talking about the New York Times.

One other question I would love to know the answer to. Did any other outlets sit on the Dobbs leak before Politico ran with it?