A lot of liberals are up-in-arms (figuratively speaking) about Justice Sam Alito (yet again). They cite 2 related reasons as proximate causes for their angst. (1) Three years ago, Justice Alito’s wife hung an upside down flag in front of their house over a particularly nasty neighborhood spat. (2) The Alito’s have flown (and for all I know still are flying) an “Appeal to Heaven” flag over their vacation house at the Jersey shore.
The facts of these cases appear to be largely uncontested; the motivations, however, are not. Is this a tempest in a teapot, or is there some substance to it? Let’s examine the cases, bearing in mind that political smears are used routinely when motivations are in dispute, especially when, as today, there is intense political polarization.
In the first case, it appears that Martha-Ann Alito flew the offending inverted flag on January 17, 2021 outside the Alito home. Justice Alito is not accused of actually placing the flag himself. Further, the allegation is made that the upside down flag, traditionally a symbol of distress, was actually a signal of support for the January 6 rioters.
At this point the question must be asked: Where is the evidence that (1) an upside down flag is a sign of support for the rioters, and that (2) Justice Alito was attempting to signal his support for the Jan 6 rioters? Or (3) are Justice Alito’s detractors attempting to make the argument that he should have demanded symbolic silence from his wife who was actually signaling support for the rioters?
There is zero evidence for any of these theories outside of the fever swamps. But let’s acknowledge that the Jan 6 rioters included an awful lot of deluded kooks, some of whom were disposed toward the use of violence. After all they did threaten to hang VP Mike Pence.
Let’s look at the flags some rioters flew. The flags included: a Three Percenters militia group flag; a Release the Kraken Flag; Kekistan Flags; Confederate Flags; Gadsden Flags; America First flags, Betsy Ross flags and, oh yes, plain old American flags.
I for one have no idea what some of these flags are supposed to represent. I do know that an American flag in distress was often used by Vietnam War protesters. And progressives used an inverted flag to protest the overturning of Roe v. Wade. But I would be hesitant to challenge the loyalties of anyone who flew an American Flag; an American flag in distress; a Betsey Ross Flag, or a Gadsden “Don’t Tread on Me” flag (to name a few).
But what about campus protesters who fly the Palestinian flag? Or how about the routine use of T-shirts emblazoned with a Che Guevara logo? How about a Nazi flag? Certainly, Hamas, Che Guevara and the Nazis were bloodthirsty killers. Even if the best and brightest at elite schools haven’y quite figured that out yet. And the meaning of those symbols ought to be unambiguous (excepting of course for the afore mentioned best and brightest). And those who choose to do so, are well within their rights to express themselves with odious symbols.
The Supreme Court has for a long time ruled that free speech rights, including symbolic speech, trump all else except in cases where imminent violence is threatened. In 1931, the Court ruled in Stromberg v California that expressive speech is a free speech right. That ruling was re-affirmed in Tinker v. Des Moines in 1969. Similarly the court ruled in 1989 in Texas v Johnson that burning the flag was protected by the first amendment.
So Mrs. Alito, as long as she did not threaten imminent violence, was well within her rights to display an inverted American Flag, just as the couple were perfectly with their rights to fly an “Appeal to Heaven” flag over their vacation home. The question then becomes: Should either or both have displayed either flag?
Let’s stipulate for the sake of argument that the symbolic meaning of those flags is completely unambiguous. Is the liberal argument that Justice Alito should have told his wife not to fly the inverted American flag. Hmmm. I would have thought that liberals would argue that women are not mere appendages of their husbands; that they are independent actors who make their own decisions. I guess in the progressive mind, that only counts where abortion rights are concerned.
But, the argument goes, Justice Alito should avoid even the appearance of bias. There may something to this argument. But again it assumes the Justice is responsible for his wife’s opinions and behavior. That said, assuming the symbolic meaning of the inverted flag is unambiguous. Martha Ann Alito probably should have avoided displaying it, if only for appearances sake. But it is certainly not a hanging offense, especially for Justice Alito.
The “Appeal to Heaven” flag non-controversy is another matter altogether. The charge that it displays sympathy for “Christian Nationalism” is pure bunk. Why? Because for one, (leaving aside the lunatic fringe) the term is undefined. It is a term designed to signal disdain. It’s just another example of using language to change popular meaning. Like for instance: Addict (preferred usage: person with substance abuse), Homeless (preferred usage, people experiencing homelessness), Sex change (preferred usage: transition), Breast feed (preferred usage: Chest feed).
By the way, the “Appeal to Heaven” flag was first commissioned and subsequently used by that old insurrectionist, George Washington. Who, truth be told, was an insurrectionist in the eyes of King George III. Here I must say that I would be hesitant to attempt to dissuade people from following Washington’s example of how to live. (And yes, I am perfectly aware that he owned slaves, probably didn’t admit to chopping down a cherry tree and like all humans, was not perfect).
But let’s not kid ourselves. The uproar over the flag, to put it mildly, is indicative of a dual standard. All we have to do is recount some of the political commentary that Justice Ruth Bader Ginsburg insisted on making while on the bench. For instance, she is on record saying the following:
“I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our president,” Ruth Bader Ginsburg.
She followed that up, according to the NY Times by saying that her late husband would have said it was “time for us to move to New Zealand.”
“He is a faker,” she said of Trump. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns?” Ruth Bader Ginsburg on CNN
“It won’t happen,” she said. “It would be an impossible dream. But I’d love to see Citizens United overruled.” Ruth Bader Ginsburg
“I thought Heller was “a very bad decision,” she said, Ruth Bader Ginsburg
“My most fervent wish is that I will not be replaced until a new president is installed,” Ginsburg told Clara Spera in the days before her death, NPR reported.
And on it goes. Not that she was wrong about Trump. I actually think she was spot on about him. But that is not the point. She was as political as they come. Except that she was politically aligned with conventional elite opinion, which means that it was quite OK.
Some liberal commentators raised an eyebrow or two over those remarks, but there was no hue and cry demanding that she recuse herself on a whole raft of cases. And she did apologize, sort of, by saying she would be “more circumspect” in the future. But that just meant she intended to be more cautious about speaking her mind; not that she retracted her comments.
So yes, if just for appearances, it would have been better if the inverted flag had not flown over the Alito house. On the other hand, the “Appeal to Heaven” complaints are pure bunk.
The real story is that a group of progressives are out to get Alito personally because he wrote the majority opinion in the Dobbs case that overturned Roe. And they mean to remake the Court by packing it. This is their latest excuse. The latest faux controversy is just another predictable tempest in-a-teapot. Good for bumper stickers, but that’s about it.
And, by the way, I haven’t heard any wailing lately (or ever) from progressive quarters about the leak of the draft of the Dobbs decision. Funny thing about that.
JFB
