The Alitos and Their Flags (2024)

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From “New York Times,” I’m Michael Barbaro. This is “The Daily.”

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Today.

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

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It’s Tuesday, May 28.

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Should we get started?

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. [LAUGHS]

Right. But you didn’t. You didn’t.

Thank god.

So just to begin, Jodi, how did your reporting on this story begin?

So I got a tip that shortly after January 6, 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 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.

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? I asked, did you see anything unusual outside the Alito home during this period? And there were many people who didn’t. So I began to think like —

Maybe this tip is wrong.

Exactly. And then I reached somebody who heard about it. So then I needed to reach people who had seen 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 bucolic.

There’s birdsong in the spring and they live in a very normal looking house that has a flagpole next to it. And in this photo that was taken on January 17, 2021, the American flag is absolutely hanging upside down. And I thought, this is real.

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But I needed to do more research into what the upside-down flag meant and what it meant at that time. Because this has been a mutable symbol in America. So the history is that it started as a military distress symbol, an SOS, a message that something is really, really wrong. I am so desperate here that I am turning the flag, which is supposed to be respected upside down.

And it has a long history of being used in protests. It was used by the left in the Vietnam War. It’s been used by both sides.

But what we quickly found is that starting around the fall of 2020, just before the election and then certainly afterwards, during the period of the Capitol riot, this had coalesced into a leading symbol of the Stop the Steal campaign. We found message boards where Trump supporters were being exhorted to turn their flags upside down in protest of what was happening. We found news clippings from all over the country where neighbors had turned their flags upside down to the horror of other neighbors who felt that it was a really inappropriate form of protest. But the overall picture is that, at this time, the upside down American flag has a real meaning and that meaning is the election has been stolen.

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? Is he going to dispute the basic facts of what we’re reporting?

And?

We get this reply that’s fascinating because he says it’s about a neighborhood dispute. I’ll read you the quotes. He says, “I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” So he’s not denying that it happened, nor is he denying that he had knowledge of it at the time.

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. And there are accusations on both sides of inappropriate behavior.

Uh-huh. So what are you thinking?

So we’re thinking, we better go ahead and publish this story. 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 6, it’s the 2020 election, it’s former President Trump. But remember that the Supreme Court has to deal with all of this.

The court is about to issue these two climactic rulings in the Trump and January 6 story. Both are going to bear on the coming election in different ways. One is about the scope of President Trump’s immunity for his actions during that period for trying to overturn the election. The second is about one of the laws that can hold the January 6 rioters and President Trump accountable potentially. It’s about a particular obstruction law and whether it is being fairly and properly applied to January 6.

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 6 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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We’ll be right back.

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 NY Times backslash tips. And lo and behold, a reader has sent in a tip about a second flag associated with January 6 at the Alito’s 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 6. What is this flag that you have now gotten a photograph of over the Alito’s house in New Jersey?

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 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 re-Christianize the country and especially the government.

They have these grand ambitions. And when he discovers this flag in 2013, he sees this as the symbol of what he wants to do. So he says, looking back at the last couple of decades of jurisprudence, it’s not only that the Supreme Court at this point is too liberal, but that it’s evil, that it’s introducing bad things to the country.

And he really admires Justice Alito. He refers to him as their great hope because Justice Alito cares about religious liberty as he does. He opposes the Supreme Court’s same-sex marriage decision.

So one of the things Dutch Sheets does to popularize this flag and the set of ideas is that he tries to get the flag into the hands of powerful people. He gives it to Sarah Palin. He gives it to all sorts of political leaders.

This group also presents it, just a few weeks before the 2020 election, to President Donald Trump. So this group has become very, very ardently supportive of President Trump. In the fall of 2020, they’re pushing very hard for his re-election.

And when he loses, they become a kind of religious arm of the Stop the Steal campaign. Dutch Sheets does a megachurch tour where he tells people that the election is stolen and they should be really alarmed. And as a result, on January 6, we end up seeing this appeal to heaven flag peppered all over the scene at the Capitol riot.

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So this flag, which according to this photograph sent into 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 6, and the Stop the Steal campaign and also with this idea that Christianity needs to retake the country and its government. So we start with one photo, but we want to understand the duration because, OK, was this flag just up for five minutes? No, we come up with photos from July, August and September of 2023.

Two plus years after January 6.

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 6 legal cases are in the process of arriving at the court.

One of them, the obstruction case about the law for prosecution, is actually arriving at the court during the period the flag is being flown. The docket clearly reflects that the first papers were there last summer. And then Trump has already been indicted and there’s a pretty good chance that proceeding is going to end up at the Supreme 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. And yes, right at this moment, the Alito home in New Jersey is flying this flag that seems clearly over the line.

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’s what we do know and what we don’t know. Justice Alito is a very conservative justice. One of the 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. He is very clear about his beliefs in his opinions.

But these flags raise, I think, a new set of questions about him, both about his beliefs and his ethics. Listen, I just want to remind you that we don’t know everything about when or by who these flags were raised. We don’t know all the details. But they do raise a question of why two of his homes appeared to be flaunting these beliefs in a open defiance of all the norms of how judges should behave.

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.

But also.

There’s been a lot of shock.

In Congress, there have been a lot of calls for his recusal from the January 6 cases, especially —

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.

There are even Republican senators.

Senator Lindsey Graham criticized Justice Alito.

But at the end of the day, the question is really what is happening inside the Supreme court?

What do you mean?

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. Michael, we’ve talked about this on the show before. These are nine individually-confirmed justices.

Chief justice John Roberts is the titular head of the court. He’s the chief administrator. He’s not really their boss. So it’s unclear that even if other members of the court think this was a really bad idea, if they can do anything to hold Justice Alito accountable.

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 6 cases were already so fraught. These are so wrapped up in politics. They’re about the last election. They’re about —

Which features candidates who will be in the next election.

Exactly. Everything about the cases, even the timing, even the small procedural details of 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 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 an open acknowledgment 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? And my question to the court as a reporter is, well, once a justice appears not to be acting that way, what will the court do about it?

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Well, Jodi, thank you very much.

Thank you. [MUSIC PLAYING]

We’ll be right back.

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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. On Monday, Israel’s prime minister called the civilian deaths a tragic accident and accused Hamas of deliberately hiding among the civilian population in Gaza.

Today’s episode was produced by Mooj Zadie, Eric Krupke and Luke Vander Ploeg. It was edited by Michael Benoist and Lisa Chow, contains original music by Marion Lozano and Dan Powell, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly. Special thanks to Aric Toler and Julie Tate.

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That’s it for me. I’m Michael Barbaro. See you tomorrow.

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