Michael Perez/AP Photo
An "Appeal to Heaven” flag is displayed as people gather at Independence Mall to support then-President Donald Trump, September 15, 2020, in Philadelphia.
The display of symbols representing the violent insurrectionist movement that attempted to overthrow the 2020 election at the homes of Supreme Court Justice Samuel Alito is a sort of final confirmation of something that’s been evident throughout Alito’s tenure, and certainly since Donald Trump’s presidency.
Alito’s family flew an upside-down American flag outside their home in Virginia during the period between the deadly January 6th attack on the Capitol and the inauguration of President Joe Biden, and later flew an “Appeal to Heaven” flag at his New Jersey beach house, according to reporting by The New York Times.
Both symbols are tied to the “Stop the Steal” campaign and attempted coup on January 6th, and are also associated with white supremacist groups. Judicial ethics experts across the board have said the flags are equivalent to putting a Stop the Steal sign in your yard, and amount to a clear violation of ethics rules. And leaders in the Senate, advocacy groups, and legal experts have called for Alito to recuse himself from currently pending cases involving the 2020 election and the January 6th attack.
Alito has refused those calls, and Chief Justice John Roberts last week declined a request from Senate Democrats to testify about ethics at the Court.
The incident clarifies the blatant partisan bias that Alito brings to his seat on the high court, and his almost scornful disregard for the notion that Supreme Court justices should be subject to the kind of ethics rules that apply to all other judges and federal government officials.
More to the point, Alito is also a rigid far-right extremist, a Christian nationalist, and is deeply hostile to equal civil rights for women, LGBTQ people, and nonwhite Americans—just like many of the would-be insurrectionists who carried those same flags while storming the Capitol, and other groups that tend to fly them nowadays. A report to the congressional committee that investigated the January 6th attack, for example, includes a picture of Trump speaking at a rally just minutes ahead of the attempted coup, as both of the flags that were flown at Alito’s houses wave over the angry and deranged crowd.
Alito’s political and social views are essentially in lockstep with many of the people in that mob, as we can see from videos of the event, their social media posts, interviews with press, and subsequent court proceedings, compared with the justice’s own words.
Alito has been described, variously, as a “racism skeptic,” and a skeptic of the one-person-one-vote rule; as the Court’s pre-eminent promoter of white grievance politics, and its foremost defender of white racial innocence; and as the most unapologetically partisan justice—a “bad judge,” in simple terms, who unfailingly delivers far-right policy victories, including when there’s no discernible legal support and even when conservative movement leaders themselves have disavowed his position.
Importantly, multiple empirical analyses, looking at how Alito thinks through the questions in cases, how he applies so-called “originalism” and other approaches to judging, as well as the actual outcomes of his votes, have demonstrated that Alito’s rulings are staunchly partisan—and more so than any other justice.
Alito’s political and social views are essentially in lockstep with many of the people in the January 6th mob.
Not to put too fine a point on it, but we’re talking about a guy who had to answer the question of whether he is “a closet bigot” immediately after being nominated to the Supreme Court in 2005. Alito was the only justice to explicitly dispute that Trump’s proposed Muslim ban was racist, despite the former president’s own admissions to the contrary. He has argued before that cops should be allowed to kill fleeing suspects, full stop, because allowing people to get away temporarily would lead to a breakdown of the social order. He viewed COVID-19 precautions around the country and the globe as “unimaginable restrictions on individual liberty.” (Incidentally, the Appeal to Heaven flag was present at the very first anti-lockdown protest, and was spotted at many others.) And Alito has repeatedly (and falsely) lamented that Christians are persecuted in the U.S., and that “you can’t say that marriage is a union between one man and one woman” because people will think you’re a bigot.
The flags, in other words, simply reveal Alito’s true colors. It’s yet another instance in which the justice has shown us that he is exactly who he often seems to be in his sneering, Fox News–inflected opinions and public speeches.
Thus far, Alito explanations have been—respectfully—nonsense.
The justice blamed his wife Martha-Ann Alito, adding that there was nothing he could do to get her to take the flag down because they have joint legal ownership of their houses and she “therefore has the legal right” to use the home as she sees fit.
Apparently, the Alitos make everyday domestic decisions based on the formal property and real estate laws of the states of New Jersey and Virginia.
Even if you want to buy that ridiculous explanation, Alito is wrong as a matter of law; the law (obviously) doesn’t give either one of the joint owners an absolute right to do what they want—it gives equal rights, and leaves the joint tenants to settle conflicts between themselves, like most married couples and even non–legally bound roomies.
Alito also said that he and his wife had no idea about the connection between the flag and the Stop the Steal movement—much like House Speaker Mike Johnson and other government officials who also fly the flag and have defended the justice.
Any connection that the public might see between that flag and those officials’ actual connections to the far right, to Christian nationalism, as well as their election denialism are purely coincidental, according to their disclaimers.
“Never heard that before,” Johnson said in response to questions about the flag’s connections to Stop the Steal. Of course, that answer simply beggars belief, coming from a U.S. House representative and a member who was in fact one of the most important architects of the movement inside Congress.
The same goes for Alito, who is currently hearing cases about the January 6th attack (in which he has clearly expressed his unconcern about that unprecedented event, and instead focused on hypothetical attacks that might happen in the future), and also works with a colleague whose wife was involved with the Stop the Steal movement at the highest levels.
On the other hand, there can be little doubt about the flag’s meaning today—not in the context of the hallway outside House Speaker Johnson’s office, nor on Alito’s lawns.
First, the meaning of any flag, by its very nature, is derived from the public, and not only the flag-bearer; people see the flag—which is the whole point—and will figure what that person or group is trying to say, via reference to facts within the domain of public knowledge. In other words, the flag-bearer’s intentions and explanation matter, but only within the broader social context and inasmuch as they’re known to the public.
In this case, a historic flag used to express patriotism and religious convictions during the American Revolutionary War has been repurposed, especially since the January 6th attack, and has become “a symbol for Trump, for Christian America, [and] for this insurgent Christian nationalism,” Matthew Taylor, a scholar of religious politics in the U.S., told Religion News Service on May 23.
Virtually every single major news outlet and every expert who was consulted since the flags were discovered has agreed on that point, as well as the fact that Christian nationalism often overlaps with forms of white supremacy.
The Appeal to Heaven flag as we know it today has been popularized by Dutch Sheets, a leader in a sect of Christian nationalism known as the New Apostolic Reformation.
It was flown outside Alito’s offices in 2015, during a Supreme Court rally by conservative groups who were pushing to stop the Court from legalizing same-sex marriage, according to research by journalist Ishaan Jhaveri and the Tow Center for Digital Journalism at Columbia University. It also appeared in 2016 at the deadly Oregon standoff between federal officials and anti-government activists led by Ammon Bundy and other ultraconservatives. And it was featured flying behind Trump during the 2017 Conservative Political Action Conference—a moment that Sheets celebrated on X.
Carolyn Kaster/AP Photo
Supreme Court Justice Samuel Alito at a White House ceremony in July 2019
As it happens, Sheets also appears to be appreciative of Alito’s use of the flag: The preacher has engaged on X with a handful of posts from his followers expressing their gratitude that Alito is making their adopted symbol more well known.
In short, the notion that Alito and/or his wife are well versed on these obscure bits of Revolutionary War history, yet completely unaware of these more recent events—and that they chose to publicly display a symbol that most of the public is ignorant of—is simply incredible. In virtually every modern instance, that flag is used by Christian nationalists, right-wingers, and occasionally white supremacists; it’s eminently reasonable to assume that anyone else flying it today probably holds similar beliefs.
Of course, the entire, long record of Alito’s public life, including his rulings and public speeches, also comports with what the flags in his yards most obviously represent.
In the 1980s, Alito wrote in a job application to the Reagan Justice Department that he had been a member of the Concerned Alumni of Princeton, a group whose mission included “preventing women and minorities from entering an institution that had long been a bastion of white male privilege,” The Nation magazine wrote in 2005.
The group’s leaders often railed against women, Black, Latino, and LGBTQ people for pushing for equity in society. At the time, Alito and his allies explained that he was not actively involved in the group; and some supporters said he was simply playing the part of an extremist Republican in order to appeal to the Reagan administration’s sensibilities. (At least one of Alito’s former colleagues said she didn’t “buy for a second that he was doing it just to get a job.”)
Even if we grant that claim for the sake of argument, the defense still leaves us with the conclusion that Alito pretended to be a far-right extremist … so that he could get a job enacting far-right extremist policies and legal positions.
Whatever the case, his Supreme Court rulings are exactly what an extremist Christian nationalist would write. Neil Siegel, a Duke Law School professor of constitutional law and political science, wrote in a 2017 law review article that “characterizing Justice Alito as a movement conservative can help explain many of his votes.”
To be sure, Alito is hardly the only right-leaning justice whose rulings invite that criticism. The legal scholar and anthropologist Khiara Bridges wrote a seminal 2022 paper in the Harvard Law Review that argues that the Supreme Court under Chief Justice Roberts “‘protects’ people of color only when it serves conservative ends,” for example.
But Alito stands in a class of his own, both empirically and qualitatively.
Among all the conservative justices, Alito has sided with liberals on the Court the least often, and is the only justice who hardly ever crosses the ideological divide in close cases, according to lawyer and political scientist Adam Feldman. In fact, Alito is the only conservative justice who has never joined with all of the liberal justices to form a majority in a 5-4 decision.
Richard Hasen, the election law expert, has described Alito as “uniformly hostile to voting rights.”
He is also the most pro-prosecution justice and the most hostile to criminal defendants, with just one important exception, as NBC News and Vox reported last month: “Empirical data shows that Alito is the most pro-prosecution justice on the Supreme Court, voting in favor of criminal defendants only 20 percent of the time. But he’s tripped over himself to protect one criminal defendant in particular: Donald Trump,” Vox’s Ian Millhiser wrote.
Another empirical analysis of rulings about standing, or whether the Court has jurisdiction over a particular dispute, found that Alito always rules in favor of conservative litigants, in 100 percent of those cases, and against liberal parties in every single instance.
The patterns are remarkably consistent: Alito is even the justice least likely to support cases brought by environmentalists, and has only ever voted in favor of conservationist groups in four instances—all of which were unanimous rulings.
And Alito’s hostility toward liberal positions and civil rights groups representing women, Black, Latino, LGBTQ, and other minority groups is self-evident.
Time and again, Alito has expressed his views that the real victims in abortion rights cases are the mostly unidentified religious doctors who might have to perform an abortion that saves a woman’s life; that the real victims in race discrimination cases are white bosses who have to fend off accusations of a biased firing, no matter how credible; that the real victims in voting rights cases are the entire states whose legislators actually stole a congressional majority by disenfranchising potentially hundreds of thousands of Black and Latino people; and that the real victims in LGBTQ rights cases are the religious Americans who have to wrestle mentally with the fact that some gay people are married, or might one day walk into their business to buy a wedding cake.
All things considered, the flag incidents involving Alito are a case where the most obvious explanation holds true. Perhaps the only surprise is that we didn’t discover any of the other flags that were flying during January 6th on Alito’s lawn.
