Supreme Court Justice Samuel A. Alito Jr.’s reason for skipping Joe Biden’s inauguration on Jan. 20, 2021, was presented by the court’s spokeswoman: Several justices, presumably including Alito, “elected not to attend the inauguration ceremony in light of the public health risks posed by the COVID pandemic.”
So where were Alito and his wife headed that same afternoon when The Washington Post’s Robert Barnes showed up at their house to ask about an upside-down flag that had flown outside their home?
This new detail, the exchange between Barnes and the Alitos, emerged over the weekend. Barnes wrote The Post’s January 2021 story about the justices who didn’t attend the inauguration, including the quote from the spokeswoman. But when he arrived at their home in Northern Virginia, the Alitos were coming out of their house and getting into their car. Martha-Ann Alito, the justice’s wife, asked Barnes to get off their property before being told why he was there.
The flag, she exclaimed, was “an international signal of distress.” For his part, Alito “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,” our recent report explained. This comports with what Alito told the New York Times when it sought comment on its original report about the upside-down flag.
Flying a flag upside down is, in fact, a symbol of distress. And that was fairly common knowledge in January 2021, as the upside-down flag had become a symbol of resistance to Biden’s forthcoming presidency and was carried by some who attended the Jan. 6, 2021, attack on the U.S. Capitol.
A second report from the Times detailed the dispute with those neighbors. After the Capitol riot, reporter Jodi Kantor revealed, a house down the street from the Alitos put out homemade lawn signs reading “Trump Is a Fascist” and “You Are Complicit.” The latter was not meant to target the Alitos, neighbor Emily Baden told Kantor, but Republicans in general.
Maybe. But the street on which both houses sit is a cul-de-sac, with the Baden home sitting closer to the entrance. To get to their home several houses up the block, the Alitos would have had to drive by. One can see how the Alitos might have felt targeted.
But this raises another issue. If the flag was intended to serve as a rejoinder to the Badens, it would not be an effective one since there would be no reason for the Badens to drive further down their dead-end street. In fact, Emily Baden told Kantor that she never saw the flag at all.
On Wednesday, Alito sent a letter to Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) asserting that he saw no need to recuse himself from decisions related to Donald Trump’s efforts to retain power after losing the 2020 election.
“I am confident,” he wrote, “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.”
Those recounted events centered on the flag — for which he offered no direct explanation.
“My wife’s reasons for flying the flag are not relevant for present purposes,” he wrote in the letter, “but I note that she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement.” Among other elements, he wrote, the dispute involved a man using “the vilest epithet that can be addressed to a woman” in addressing his wife.
The Times reports that this exchange occurred not before the inauguration — explaining why the flag was seen outside of his house at that point — but instead in mid-February. This version of events, relayed by Emily Baden, was corroborated by a call she placed to police.
There had been more than one encounter with the Badens before Barnes’s arrival, though, according to that report. One was the day after the Capitol riot, on Jan. 7 — 10 days before the flag was photographed outside the Alito household. The Alitos and Badens also confronted one another at some point on Jan. 20 before Barnes’s visit — an encounter that would have been top of mind when Barnes asked Alito whether the flag bore any political meaning.
In his letter, Alito again insisted that he had nothing to do with the flag.
“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 wrote. He described this effort in strikingly legalistic terms: Since she is co-owner of the house, he continued, his wife “therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.”
This is a striking claim: that he apparently believed the flag should be taken down but that his efforts to effect that happening were stymied by Martha-Ann Alito’s property rights. You will also note that his letter doesn’t suggest that the flag was a response to the Badens but, instead, that it coincidentally flew at a time when his wife was “greatly distressed” by her neighbors.
The reason the flag flew is “not relevant for present purposes,” he asserts — though the purpose of the letter was to establish that the flag was not an indication of his views of Trump’s efforts to retain power.
What we are left with is that Alito didn’t put the flag up but didn’t do much to take it down. It flew some days after an encounter with their neighbors, albeit not the ones that involved the most vitriol. And if it was intended as a signal to those neighbors, it was one that they almost certainly would not have seen.
We also know that Alito’s concern about the coronavirus was too significant to allow him to participate in Biden’s inauguration but not significant enough to keep him at home when The Post’s reporter showed up that day. And we know that, in Alito’s estimation, none of this should cause any objective observer to have any questions about his views of the former or the current president.
