What Was the Alito Flag Really About?

Thirty-five years ago, I was a reporter for The Washington Post, working on a large and complex feature article. A recent graduate of a Washington, D.C., university had agreed to come by my office to share what they knew. But shortly after sitting down, they made a startling statement:

“I’m assuming you know I’m in CIA training.”

I’d had no idea.

When the subject realized what they’d done, they begged me not to print it. It would end their spy career before it had begun. And so, I wrestled with a conundrum every reporter faces: I knew something really interesting. But was it essential to the story? Was it even relevant? Would the harm it causes an innocent person outweigh the interest their story might have for readers?

After much consideration, I decided not to print. To this day, I have never disclosed the identity of this source to anyone.

I think I made the right decision, but that is a matter of luck as much as judgment. Nothing happened that would have made the person’s identity relevant; I never had to face professional second-guessing of my decision to stay my hand.

I thought about this incident when I read that Robert Barnes and his editors at the Post had known that the Alito household was displaying an upside-down flag on the day Joe Biden was sworn in as president. The Post decided not to print the story.

Four years later, that decision is the talk of the profession and social media. Much of the commentary is scathing. To readers today, the Post’s decision seems like a mistake because the incident fits into a pattern of ethically questionable political expression by the justice’s wife—and by the justice, who is co-owner of the house, as well.

Robert Barnes, who interviewed the Alitos in 2021, is among the finest reporters I have ever known. His Supreme Court coverage was brilliant and ethical in every way. Like others in the Court’s press room, he was responsible for making the justices’ often recondite proceedings comprehensible to ordinary non-lawyers, and he usually succeeded. In addition, in 2011, I was the oldest cub Supreme Court reporter in history at age 61; he was unfailingly kind and helpful to me as I blundered about the marble palace. Criticize his decision if you choose—but do not question his ethics. Instead, look at the question he was confronting without the knowledge we have today. Use the facts of the incident as the Post reported them on May 25 for context.

Barnes reports that Martha-Ann Alito greeted him with a gruff shouted order to “get off my property.” After he questioned her about the flag, she replied, still shouting, “It’s an international signal of distress!” At this point, Justice Alito persuaded his wife to move away from Barnes and sit in their car (they’d been preparing to depart from the house). Nonetheless, she continued to belabor Barnes, shouting, “Ask them what they did!” which he took to refer to unnamed neighbors whom she perceived to have been hostile to her and her husband. Then she exited the car and brought out “a novelty flag, the type that would typically decorate a garden. She hoisted it up the flagpole. ‘There! Is that better?’ she yelled.”

Immediately after the incident, Justice Alito gave the Post a statement:

 “I had no involvement whatsoever in the flying of the flag . . . . It was placed by Mrs. Alito solely in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Here is the newspaper’s explanation of the decision not to print the story:

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.

After years of seemingly partisan or at least intemperate public behavior by Alito himself and after the reports of another politically charged flag being flown at the Alito family’s summer home in New Jersey, we can conclude that not printing was a mistake. But looking at the incident from the day it happened, might there not be another explanation than bad faith?

Consider the behavior recounted in the Post’s account: a reporter approaches the wife of a prominent figure, who becomes agitated and screams in rage, first at him and then at unnamed, unseen enemies. Her husband must soothe her and persuade her to disengage; she then goes to great trouble to hoist a nonsensical garden flag, shouting, “There! Is that better?”

As Martha-Ann Alito said to Barnes, the flag is “an international signal of distress”—and though it has acquired a new meaning in the polarized politics of the 2020s, it has long been unquestionably that.

But that “distress” may not have been political at all. Could it have been personal? Stripped of their political context, Martha-Ann Alito’s actions can be read as those of someone fighting demons—which can come to torment a person of any age, station, or opinion. I have not spoken to anyone involved in the decision not to print, but I wonder whether it was made not out of carelessness but compassion.

There are things a reporter does not write unless he or she has to. Personal struggles are often among them.

Now, I yield to no one in my objection to Alito’s jurisprudence and demeanor. Ever since arriving on the bench, he has behaved like an entitled lout. Do you remember him talking back to Barack Obama at Obama’s first State of the Union address? As a sitting judge, he has always been undisciplined, freely showing hostility to one side or another, berating disfavored litigants and trying to force them to concede their cases, sometimes virtually spitting with rage. His opinions often may only generously be said to shade, rather than misrepresent, the facts. He displays an unbecoming ferocity toward most criminal defendants. He sometimes seems to aspire to be more than a mere judge, to become some kind of society-wide prophet and patriarch–remember his suggestion that the Supreme Court had a duty to loosen restrictions in capital cases because the use of execution drugs stirred public opposition and activism: “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty?” (Even Alito’s ally George Will of the Post rebuked this as silly: “it is not the judiciary’s business to worry that a ruling might seem to ‘countenance’ this or that social advocacy.” ) Remember his denunciations of American culture because of criticism of Christianity and religious-right politics?

Whatever the reason, Samuel Alito is a very bad justice. I have met him only twice, but having sat in the same room with him for countless wretched hours over a decade, I am deeply thankful that I never have to do it again.

But that said, Alito’s behavior seems to have deteriorated over the past few years. As CNN Supreme Court analyst Joan Biskupic writes in Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences, her indispensable 2023 guide to the Court’s metamorphosis:

Through the years, Alito appeared to grow angrier, even as his positions prevailed with the addition of more rigid conservatives. His attitude emerged in his written opinions and in public speeches as he railed against members of Congress (particularly Democrats), the news media, and progressive causes such as LGBTQ rights. Alito wore a heavy cloak of grievance as if he were perpetually wronged and destined to be misunderstood.

Alito’s public speeches taunt those who oppose him (remember his obliquely claiming credit for the ouster of British Prime Minister Boris Johnson?) His majority opinions lash, with inappropriate contumely, fellow justices who dare to dissent from his view of a case. The opinion by which history will know him—Dobbs v. Jackson Women’s Health Center, overturning Roe v. Wade—is such a poor piece of judicial craft that it has spawned litigation across the country while state and lower federal courts try to piece out what importance, if indeed any importance at all, the law now assigns to the health and well-being of pregnant women. Accepting luxury vacations from wealthy donors is flagrantly unethical—indeed, by itself, grounds for demanding his resignation, and his public statements defending this shocking behavior are laughable at best. He seems to think he should be above ordinary ethical concerns and even (remarkably for a government official who works for the American people) any public criticism.

Can we view this behavior as a “sign of distress”? Is his flag flying upside down in a personal rather than political sense? Are there things we will not learn about Alito and his life until he is long gone—things that will put this horrid erratic behavior in a different context?

The question is important in human terms but not in public obligation. Unethical behavior and judicial misconduct are offenses against the nation, whether inspired by ideological zeal or personal torment. If Alito does not reform himself, then someone must intervene. The Court itself is at risk if things continue as they are.

Could it be that, if he does not resign, someone with moral authority inside the Court might suggest a leave of absence (Justices have taken them before) to deal with whatever is tormenting him and, through him, the rest of us?

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