The Alitos and Their Flags

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From the New York Times, I'm Michael Barbaro. This is The Daily.

Today.

There is mounting pressure tonight on Supreme Court Justice Samuel Alito after a report that a symbol used by election deniers was on display at his home 11 days after the January 6th attack.

Neighbors told the New York Times that Justice Samuel Alito had an American flag hanging upside down outside of his house.

For a guy who is a Supreme Court Justice that let that happen at his own home, it's just sad. More controversy at the Supreme Court.

According to the New York Times, a second provocative flag was flown at a home belonging to Justice Samuel Alito.

I think the question is, how many MAGA battle flags does a Supreme Court Justice have to fly until the rest of the court takes it seriously?

The saga of Justice Samuel Alito, the flags that flew over his homes, and the extraordinary fallout that they've created. Our guest is Jody Kantor, the reporter who broke the story.

Sure.

I want to thank you for being in the studio with me because, as you can probably hear, I have a pretty nasty cold, which makes you very brave for sitting across from me.

Well, Michael, there was the time I thought I gave you, COVID.

Right, but you didn't. You didn't.

Thank God.

Okay. So, just to begin, Jody, how did your reporting on this story begin?

So, I got a tip that shortly after January 6th, an upside-down American flag, which at the time had really become a symbol of the Stop the Steal campaign, the effort to overturn the election, the insurrection at the Capitol, had flown outside Justice Alito's home in Virginia.

That's a heck of a tip. I wonder what you're thinking when you first get it.

Heck of a tip, but, you know, we hear a lot of things from a lot of people, Michael, and people are mistaken sometimes, and then I was also thinking, wait a second, is it possible that the Alito household is showing support right outside their home for the riot at the Capitol? This is a justice of the United States Supreme Court who's supposed to embody the law. Right.

Not display open defiance of it.

Exactly.

And so, what do you do with this tip?

Well, I make a round of phone calls to everyone who lives around Alito. Remember that most people don't even pick up their phones now because there are so many junk calls and untrustworthy things. A lot of people didn't want to talk to a reporter. And also, when you're making these calls, you don't want to plant things in people's mind. So, I didn't want to ask, did you see an upside-down flag?

Maybe this tip is wrong.

Exactly. And then I reached somebody who heard about it. So I got a little closer, and then I reached somebody who had taken a photograph.

Just describe this photo.

So the Alitos live on a really pretty block in Virginia. It looks like a refuge. It's really quiet. It's kind of bucolic. There's birdsong in the spring.

So, at this point in your reporting, you've got the flag firmly established. You've got its meaning in hand. So what do you do?

We ask Justice Alito about it. So I send these questions to the Supreme Court. We wait. We have no idea what Justice Alito is going to say. And when you're an investigative reporter and you send off these kinds of queries, you really have one primary question above all others, which is, are they going to deny?

Right. What did you make of that? What is this dispute that he seems to be referring to, as best you can tell? Yeah.

So it turns out there's a younger couple living on the block and they are not shy about their political views. They put up signs criticizing Trump. The signs have expletives on them. Mrs. Alito objects very strongly to those signs.

So what are you thinking?

So we're thinking, we better go ahead and publish this story.

Right.

Listen, a bedrock rule of judicial ethics, not just the letter of these various judicial rules, but the spirit of them, is that you do not make political displays. And I'm talking to legal experts who are really stressing that judicial rules are about even the appearance of partiality, even giving people the wrong impression. And when they hear this explanation, they're saying, how could a neighborhood dispute justify breaking such a fundamental rule of judicial conduct? And this is not some theoretical question of impartiality. Remember that this is greatly heightened, not only because it's the insurrection, it's January 6th, it's the 2020 election, it's former President Trump.

Right. So suddenly the question would seem to be, is Justice Alito, having had this flag above his house, coming to these two hugely important cases about January 6th impartially, or has he started to tip his hand about how he feels about the events at the center of these cases?

Correct. And then those questions only become stronger, because then we get a tip. And the tip is that there's a second flag.

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This is A.O. Scott. I'm a critic at The New York Times. These days, there are so many movies and books and television shows and songs that it's hard to make sense of it all. At The New York Times, what the critics do is sort through as much of that as we can to come up with advice, with recommendations, to guide you toward the stuff that's worth your time and attention.

So, Jodi, tell us about this second tip, about a second flag.

So it's hours after we've broken the story of the upside-down American flag in Virginia, and then we get this tip. The New York Times has a tip line where you can send information, it's nytimes, backslash tips, and lo and behold, a reader has sent in a tip about a second flag associated with January 6th at the Alitos' other home, a beach house in New Jersey. And she sent a photograph.

Wow. Let me just start with the idea of a second flag associated with January 6th. What is this flag that you have now gotten a photograph of over at the Alitos' house in New Jersey?

Okay, so picture a white background, a green pine tree in the center, and the words appeal to heaven at the top of the flag. Now, this is a very old American flag. It was created around the time of the Revolutionary War, and until about a decade ago, it was kind of a relic. It was really obscure, the kind of thing that was in museums. But then it gets revived by a very specific group with a very specific purpose.

Which is?

Well, there's this religious leader named Dutch Sheets. He's a leader of a loose group that scholars call the New Apostolic Reformation. This is a far-right evangelical group, and their real goal is to kind of re-Christianize the country and especially the government.

Huh. So this flag, which, according to this photograph sent in to the New York Times tip line, is hanging above Justice Alito's second home, by the time it's doing that, quite recently, is an emblem, basically, of Stop the Steal for the American Christian right.

Yes, I would say it stands for three things. It is highly associated with support for President Trump. It is highly associated with January 6th and the Stop the Steal campaign, and also with this idea that Christianity needs to retake a country and its government. So we start with one photo, but we want to understand the duration, because, okay, was this flag just up for five minutes? No.

Two plus years after January 6th.

Exactly. And the timing of last summer is really significant. First of all, it shows that the first flag in Virginia is not a one-off. It just seems like much less of a random event. But second of all, these January 6th legal cases are in the process of arriving at the court.

And yet this flag flies.

Correct. And then the other thing happening at the court around this time is that the justices are trying to finalize an ethics code. Remember, there's been a ton of controversy about the conduct of the justices, why aren't Supreme Court justices bound by the same rules as other federal judges? And inside the court, they are trying to work out what a code of conduct might say. Justice Elena Kagan gives a speech during this time saying, we're really close, we're hoping to have something for you soon, but there are some final disagreements we're trying to work out.

Okay, so what does Justice Alito have to say about this flag?

Nothing. He declines to respond.

Got it. Jodi, the inevitable question here is, how do these flags fit into our understanding of Justice Samuel Alito? As you said, and as most people who know the court understand, he is very conservative. That's not really in dispute. But does this flag deepen our understanding of that, or is it genuinely surprising in what it reveals about the depth of that?

So here is what we do know and what we don't know. Justice Alito is a very conservative justice. Right. One of the kind of twists of this current era on the court is that the justices appointed by President Donald Trump.

Which we think of as so conservative.

Which we think of as so conservative, are not as conservative as Bush justices like Justice Alito and Justice Thomas. Justice Alito is very open about his feelings about religious liberty cases. He is the justice who drove the Dobbs decision that overturned Roe v. Wade, and he authored that majority opinion. I mean, he is very clear about his beliefs and his opinions.

I'm curious what the response to your reporting has been. Once it becomes clear, I think, objectively speaking, that the raising of these flags seems to be at odds with ethical guidelines for federal judges. What do people have to say about it?

There are some conservatives who have written it off. What's the controversy here? Am I missing something? Yeah, Kayleigh, this is just another partisan smear against Justice Alito. He's under no obligation to recuse from cases because of a flag.

No one besides The Times this week suggested that this was a symbol of insurrection, a symbol of criminality. And all of a sudden, this is accepted wisdom?

You know, people who are judges on the Supreme Court have personal lives. They have families.

And I don't think they're necessarily responsible for everything their families do or say.

But also — It is stunning. There's been a lot of shock.

It's not enough to be a Supreme Court justice flying one MAGA battle flag at your house. You've got to have two houses and fly two MAGA battle flags, one at each house.

He definitively needs to recuse himself from any matter pending before the United States Supreme Court. that has to do with the January 6th violent insurrection. In Congress, there have been a lot of calls for his recusal from the January 6th cases.

In other words, he should not show up and vote on these cases?

Correct, because there is a law that binds all federal judges, including Supreme Court justices, on recusal. And a lot of people are saying this meets the recusal standard.

Without question, he needs to recuse himself from those cases,

step aside on all the cases that involve Donald Trump. There are even Republican senators. I mean, I don't know what happened.

You know, all I can say is it created a situation that we're all talking about.

Senator Lindsey Graham criticized Justice Alito.

Yeah, I think it was a mistake, but I'll leave it up to him to explain it.

But at the end of the day, the question is really, what is happening inside the Supreme Court? Because one thing we know about the court is that it's essentially self-governing. They've created their own ethics code, but there's no enforcement mechanism. You know, Michael, we've talked about this on the show before. These are nine individually confirmed justices.

So it's quite likely that the repercussions of having these two flags fly over these two houses of a Supreme Court justice will be absolutely nothing.

Maybe. I'm not ready to make a prediction on that yet, but I will tell you this. These two January 6th cases were already so fraught. These are so wrapped up in politics. They're about the last election.

Which features candidates who will be in the next election.

Exactly. Everything about the cases, even the timing, even the small procedural details of, you know, what happens when in each case, let alone the big decisions that the court makes about these two cases, will have political consequences. And the court was kind of already in a bind with them, because it's been clear that, no matter what they decide on either of these two issues, the challenge of getting a broad swath of Americans to really accept these decisions as authoritative is immense. And these flags just don't make it any easier.

Jodi, I can't end this conversation without asking you a somewhat provocative question that I think is pretty important. It's not exactly a secret at this stage of America's history that our Supreme Court has justices on it who operate in a way that feels partisan. And so is this kind of an open acknowledgement of something that we've known for a really long time, which is that the justices take pretty predictable votes on questions that are ideological? And is Alito basically just saying, let's dispense with the illusion that we are anything other than political actors in the judicial landscape? And I so don't feel the need to hide that fact anymore that I, or my wife, or both of us, I'm just going to hoist a flag right over our house saying it.

Look, the Supreme Court has always been political throughout its history. There's no illusion about the way Supreme Court justices get appointed. But the commitment has always been to abandon partisanship at the door. That's what they all say they're going to do in their confirmation hearings.

I put on this robe and I take off my politics.

Correct. So my question for Justice Alito is, are you still committed to that way of operating?

Well, Jodi, thank you very much.

Thank you.

We'll be right back.

Can AI give us a window into the hidden parts of the natural world? Google Cloud AI is helping identify whale songs to keep humpback populations safe, monitoring bird calls to protect their environment, and mapping the abundance of species to assist in conservation efforts worldwide. From ecology to enterprise, learn how AI from Google Cloud is redefining what's possible at g.co forward slash cloud.

Here's what else you need to know today. An Israeli airstrike in the city of Rafah on Sunday killed at least 45 people who were sheltering in a makeshift tent camp, according to the Gaza Health Ministry. The attack fueled growing outrage over Israel's military tactics. The strike occurred just outside what Israel has designated as a humanitarian zone, where it's told Palestinian civilians in Rafah to seek shelter. And it came just days after the International Court of Justice ordered Israel to end its military offensive in Rafah, an order that Israel has ignored.