Supreme Court judge Samuel Alito was asked to recuse himself from cases involving the January 6, 2021, riots, following the news that an upside-down U.S. flag, which was associated with that insurrection, was hung at his house on that day.
In a bit of meta-commentary, Paul Campos tells this story of Kathleen Parker, a Washington Post columnist who comes to Alito’s defense, quoting the judge’s statement, “My wife is a private citizen, and she possesses the same First Amendment rights as every other American . . . She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.” This shifts things to Mrs. Alito, who, Parker assures us, “is funny, feisty, unfiltered and the life of any party.”
I’m not going to express any view on whether Alito is violating any ethics code, as this is something I know nothing about—here’s a Washington Post op-ed arguing that there is an ethics violation, based on “the statutory mandate that a judge ‘shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,'” which sounds kinda vague—lots of moving parts on this one.
The thing I want to focus on here is the apparent contrast between the Mrs. Alito being a funny, feisty, and pleasant person and the Alitos possibly supporting an armed overthrow of the U.S. government.
When a political movement becomes big, it can attract lots of funny, feisty, pleasant, intelligent, and accomplished people. Back when supporting a right-wing takeover of the U.S. government was an extreme position, sure, then it was mostly the very troubled people who would support the idea. But now that a big chunk of Americans hold that view, sure, this chunk will include lots of funny, feisty, etc. people. Indeed, once a position becomes mainstream enough, its very mainstreamness, at least in some social contexts, can make it more attractive to our funny, feisty friends.
Here’s some historical context. Communism used to be popular among intellectuals in the U.S. and elsewhere. Remember Oppenheimer? OK, he wasn’t supposed to be such a nice guy, but “funny, feisty, unfiltered and the life of any party” . . . that sounds about right. And I’m sure that many of his communist friends were funny, feisty, etc., and also very nice people too. Did they support the armed overthrow of the U.S. government? I guess they did! This armed overthrow wasn’t going to happen anytime soon, so maybe they felt that by doing small things to push the country in that direction, some good things would come of it . . . but, yeah, they were on the side of revolution. Most Americans weren’t, but if the communists had succeeded in taking over the Democratic party in the way that insurrectionists have succeeded with much of the modern Republican party, then who knows?
The point is, there’s no reason to think that someone being funny, feisty, etc., should get in the way of her or her spouse supporting an insurrection. Just look at history.
And this takes us to the title of this post. In science, we say that honesty and transparency are not enough. As Nick Brown and I recently put it, it is important to be able to criticize published research without impugning the integrity of the researchers; conversely, researchers should not fool themselves into thinking, just because they are morally upright, that they cannot publish work with serious and avoidable errors.
I have no problem with Kathleen Parker using her newspaper column to sharing her positive impressions of Martha-Ann Alito. I just don’t think this is particularly relevant to the important political question of whether Samuel Alito is violating judicial rules, which I guess would be best addressed through some study of the law, along with evidence on previous cases where judges have taken strong political positions outside of their court rulings. Indeed, I wouldn’t even think it particularly relevant if Parker had direct evidence on Mr. Alito’s feistiness, etc. This is not to say that Parker is wrong on the merits—it’s hard to say, as she doesn’t address the legal issues in her column—just that I recognize a form of reasoning that bothers me when it comes up in discussions of science too.
“possibly supporting an armed overthrow of the U.S. government.”
‘Possibly’ is doing so much heavy lifting there that it makes Arnold Schwarzenegger look like Bill Gates.
Phanatic:
Yes, good point. The phrase “possibly supporting” kind of implies that “supporting” is a binary thing, and that he either supports or doesn’t. In reality, there are different levels of supporting. A term such as “ambiguously supporting” would be more accurate.
In any case, my main point is how this connects to the “funny, feisty, unfiltered and the life of any party” bit.
Andrew: This is beyond your scope, but the same double standard exists within the government with regard to mishandling classified information.
I don’t think the Alitos have ever denied that the upside-down flag was intended to indicate support for the January 6 rioters, who were trying to prevent power from changing hands to the newly elected president.
Phanatic, are you saying that the rioters, if successful, would not have been conducting an “armed overthrow of the U.S. government”? Some of them were armed. Are you making a pedantic point, like, they want to install their own government but it wouldn’t technically require “overthrowing” anything because the newly elected government hadn’t taken office yet? Or is there something here I’m missing?
I note the Wikipedia article about this https://en.wikipedia.org/wiki/January_6_United_States_Capitol_attack characterizes them as attempting a “self-coup”, which, I learn by clicking through, “is a form of coup d’état in which a nation’s head, having come to power through legal means, stays in power through illegal means.”
Is that the distinction you’re making, that this would have been an armed coup but would not have been an “overthrow”?
Phil, I think they do deny this. If this is the flag you are talking about (they’ve flown other meaningful flags too) they claim it is related to a dispute with their neighbour and unconnected to Jan 6: https://edition.cnn.com/2024/05/25/politics/samuel-alito-wife-upside-down-flag/index.html
They’ve flown two flags that are closely associated with “Stop the Steal.” They claim one of them was unrelated and they didn’t know about that association.
But as for the upside-down American flag, I’ve never seen anywhere (including the link you posted) where the Alitos claim it is not associated with that movement. I think such a claim would be laughable, considering they flew the flag a week after the Capitol attack, and they say they did so in response to an anti-Trump shouting match with a neighbor.
The claim about the other flag seems unlikely to me too, but perhaps falls into the “plausible deniability” category,
In response to your comment below – in the link it doesn’t seem like they’re actively saying it is not associated with any other movement. But they say it is an international sign of distress and raised in response to arguing with a neighbour. I also find it laughable they’d claim in either case that the flags aren’t being raised in association with these movements but I think the fact that they are saying it was raised in response to their neighbour indicates they are trying to say it was not to do with ‘stopping the steal’. I think the point of these things is that they all have plausible deniability at least to some people. And as we cannot read their minds they are technically deniable, even if not to me or you plausibly so.
I need the help of some more knowledgeable about Jewish law than I am. We are instructed to avoid even the appearance of sinning; hence a rabbi won’t eat fake bacon. The upside down flag on the Justice’s face certainly creates the appearance that he supports a cause. His wife certainly has the right to wear Nike logo clothing, but if Nike has a pending case it creates a plausible issue.
Yes, kinda. But it’s much easier to argue that she has the right to wear what she wants and it has nothing to do with him.
A Supreme Court justice had a flag flying in front of his house that strongly implies support for the notion that the elected president of the United States should not have been allowed to take office, and that the loser should have been instated instead.
If we were talking about a tee-shirt she was wearing, OK, that still seems like terrible optics but I can see the argument that hey, what’s he supposed to do, he can’t stop her from wearing whatever shirt she wants. But this is not a tee shirt that belongs to her alone. He is — I assume — part owner of the house.
Does a spouse wearing a brand mean a justice should recuse from a case involving that brand? I’ve never heard that claimed before. There are lots of companies with well known brands which wind up before the court. Nike, specifically, had both Nike v. Kasky (which SCOTUS initially agreed to hear, but then dismissed) and Already v. Nike (9-0 in favor of Nike’s position). I don’t know whether any of the justices (or their spouses) wear Nike, but it appears none of them recused.
Wonks:
I think part of the issue with the Alito flag thing is that it is coming up at the same time as other conflict-of-interest issues such as the gifts to Thomas, etc. These are constitutional issues, much bigger than someone wearing Nike shoes and ruling on a Nike case, or someone who has a Netflix subscription ruling on Netflix, or a Coca-Cola drinker ruling on sugar subsidies, or whatever.
Wonks, as I said in my last paragraph I do not necessarily think he would have to recuse himself because if a tee shirt his wife chose to wear. I just said that.
But this case is very different. This flag was flying over Justice Alito’s house.
Honestly what would it take for you people? Suppose he was driving around in a car with a Stop The Steal bumper sticker, would you agree that was a problem? Perhaps you wouldn’t, if he said it’s the family car and his wife put the bumper sticker on it and it’s got nothing to do with him.
I don’t know what else there is to say here. I think it’s outrageous for a Supreme Court justice to have a flag flying over his house that implies support for a president trying to remain in office after losing the election, and I’m not going to change my mind. Not will I try to convince you that you should agree with me.
I was responding to oncodoc on the specific issue he brought up with Nike, where I thought it relevant that it’s not merely a hypothetical since Nike has in fact been a party to cases involving the court.
If Alito’s wife was sued by a neighbor, or if she were arrested, it would seem obvious that Alito himself could not rule on the case. If the idea is that Alito should not judge cases because he’s politically biased, I would say that from the beginning he’s been one of the hackiest justices on the court as he’s most prone to ruling based on his preferred outcomes rather than what the law requires (legal scholars might call him a “pragmatist” rather than a “formalist”), but people just accepted that as normal. But since he’s never indicated the flags express any such support, and instead denied it when asked (although I know you denied either of them ever denied it), any conclusion about such an expression of support is irrelevant. Nor do I think it makes any sense to cater to people ignorant of the multiple meanings of various symbols which long predate January 6th, which would just encourage a race to the bottom of the most ignorant and easily outraged.
The upside-down American flag had indeed been a distress symbol for a long time, as everyone knows. It has also been a symbol of the “stop the steal” move before much shorter time, as everyone also knows. The movement chose it because it is a symbol of distress. I
Alito has said that his wife flew the flag in response to a dispute with an anti-Trump neighbor, something like a week after the Capitol invasion.
You evidently think Alito has denied that the flag means what it obviously meant. I’ve read Alito’s statement and there is no such denial. It would be bizarre if he did make such a denial, since he would have to claim that his wife chose a symbol of the movement, a week after the riot, to respond to a neighbor who was upset about Trump, without knowing it had become a symbol of Stop The Steal.
Believe what you want, nothing can do about it anyway, but iI think you are going through some weird intellectual contortions.
Phil, my answer to “what would it take for you people” is that it’s a fact-specific assessment. This is sleazy “gotcha!” politics, using the most malicious spin which can be conjured up by technically true but substantively false characterizations. It’s the opposite of intellectual honesty. It’s trying to tar Justice Alito as having Jan6-supporting views by insinuation, where that would fall flat on its face if the argument was made straightforwardly.
We’ve disposed of the “Appeal To Heaven” flag part, agreed? I’m actually still truly curious how you came to the idea that “no doubt that the flags … were intended to show support”, when that part is so false for that flag.
The upside-down flag was done by his wife, and again, characterizing it as general Jan6 support seem wrong, because it’s not clear what exactly she was thinking more than a petty piss-off-neighbor. I don’t see the meaning as Jan6-specific (remember, Jan6’er using a symbol doesn’t make it symbol meaning Jan6). When we start getting into trying to attribute Jan6 support to him because, what, he didn’t immediately threaten to divorce her? I suspect if he did go so far as have big fight with her over it, the mudslingers would be saying he’s responsible anyway, he should recuse, etc. etc.
Basically, if something has to be given the most negative interpretation possible AND apply guilt-by-association, it’s a political hatch-job.
Seth, I agree with you that Alito has denied that the Heaven flag was intended to show support for Stop The Steal. I do not -believe- the denial, necessarily, but I agree that it is possible.
But there’s no way the Alitos didn’t know what an upside-down flag would symbolize a week after the Jan 6 riot. Give me a break.
An upside-down flag has meant (often metaphorical, even if it officially shouldn’t be use that way) dire distress since *long* before some people at that particular protest-turned-riot used it to express their own level of upset.
Sure, but I don’t think anyone — including the Alitos — is claiming that in this case it is intended to indicate support for the people who invaded the Capitol to try to disrupt the certification of the vote.
Oops, I mean no one is claiming anything -other- than the flag represents support for the stop/the-steal movement.
The Alitos themselves are claiming it was directed at a neighbor rather than commenting on something at the Capitol.
Wonks, they are claiming it was directed at an anti-Trump neighbor. If either of them has ever denied that it indicates support for the Stop The Steal movement, I haven’t seen that denial.
In contrast, they -have- denied that the Heaven flag was intended to indicate support for that movement. I’m skeptical of that denial but it is clearly a denial. Alito knows how to explicitly deny something.
I don’t know, I’ve had neighbors that put it up after every election where Democrats are elected. It’s not like she necessarily knew the riots were going to happen when she put the flag up. I guess there were the bombs before the riots, but at the time those felt more like the crazed act of an individual than part of a national movement.
I am having trouble understanding the connection between the Ms. Alito case and the “honesty and transparency are not enough.” Whether her personal traits are compatible with supporting insurrection or not does not map well to statistical researchers honesty and transparency characteristics incompatibility with good statistical practice, in my view. In other words, I don’t understand this post.
I am happy to see opinions on Alito et al, given how frustrating this election is and what it reveals about the candidates and the populace. But the point of this post is not transparent (though honest) enough for me. It may not be the post that is obtuse, it could well be me, but some explanation would help me.
I think our host has a problem with people arguing with spurious correlations – in this case the supposed correlation between ‘engaging personality’ and ‘does not support overthrowing the government’. There is no direct connection between the two observations. This is similar to the mistaken (often implicit) assumption that honesty and sincerity and great effort necessarily equate to research without fatal flaws. My takeaway was that being a nice guy is not enough for me (or anyone else) to avoid making serious mistakes in research, nor is it enough to prove that I do not want to overthrow the government.
It was funny, when I was in the middle of the article, when I got to the part about communist sympathisers, I had to think of a talk from that time which warned that the communists would not be outwardly evil and disgusting people, but friendly, chill and neat. The young listeners were warned to beware of ‘wolves in sheep’s clothing’.
I would say that personal kindness does not correlate all that well with positions on Big Issues far beyond the personal scale, since people can be – and very often are – misled about the actual effects of policies, and have wildly different values.
Someone can be a good-hearted person and support Communism if they honestly but incorrectly believe that Communism would improve things.
Note that Alito’s wife is named MARTHA-ann and there was another famous wife named MARTHA who also caused a political stir a bunch of decades ago when she injudiciously spoke to the press:
https://en.wikipedia.org/wiki/MARTHA_Mitchell
“Martha Elizabeth Beall Mitchell (September 2, 1918 – May 31, 1976) was the wife of John N. Mitchell, United States Attorney General under President Richard Nixon. Her public comments and interviews during the Watergate scandal were frank and revealing.”
Admittedly, two MARTHAs do not make much of a case for generality but MARTHA could be an anagram
https://unscramblex.com/anagram/martha/?dictionary=nwl
5 letter words you can make with martha
arhat haram marah ratha tharm
although not necessarily in English. Check out the above 5 words to see which of them is legitimately part of the English language..
This is some Batman vs Superman – level work.
Related a bit to oncodoc’s post, these Supreme Court stories have made me think about what other government employees are asked to do. The FAA, for example, says that because their role is so public-facing and about public safety, employees should avoid even the appearance of a conflict of interest (presumably related primarily to aviation, but I don’t think it’s specified).
Aside from aviation, the standards of conduct also say “Any political activity that is prohibited in the case of an employee acting independently is also prohibited in the case of an employee acting in cooperation with others or through an agent. Employees are accountable for political activity by persons other than themselves, including spouses, if the employee is using that person to accomplish indirectly what the employee cannot do directly and openly. ” It also clearly says that spouses can have their own interests and activities, so it would be hard to say how to demonstrate which is which unless the spouse were to come out and talk about it.
All of which is to say, it’s always a bit surprising to me to see what high-level government folks can do (or get away with) that rank-and-file folks can’t.
Alex:
Yeah, this is similar to the way that university faculty can do all sorts of plagiarism and research misconduct (Here’s just one of many many examples we’ve seen over the years), which students wouldn’t be allowed to get away with.
Unpopular opinion: I’m completely against Alito’s judicial views. But in fairness to him, this incident has struck me as an extremely bad-faith manufactured “controversy”. It’s basically the tiniest of fig-leaves to justify the political purpose of media-harassing him and his wife because of his rulings. Look at all the leaps of logic here. His wife gets in a dispute with neighbors, and flies a flag. First the flag is given the most negative interpretation possible, then that he’s tainted because his wife did this, and then that requires recusal. It’s so obviously a pile of innuendo for the purpose of throwing mud at him. Disputing any link in the narrative is just fodder to set off another “controversy” about how of course they are lying, they’re bad people – insurrection-lovers! How can anyone believe a MAGA?
There’s times I can really see why conservatives hate the mainstream media, and this is one of them.
Huh. It has been my impression that there is no doubt that the flags (the upside-down US flag, and the “Appeal to Heaven” flag) were intended to show support for the ‘stop-the-steal’ movement (and ‘stop the steal’, in this case, means use illegal means to stop President Biden from being president).
You seem to be saying that those flags had some other purpose? I don’t think either Alito has ever denied that that is what those flags are intended to represent.
I probably agree with you inasmuch as I am pretty sick of fake outrage, or genuine outrage over trivia. But a Supreme Court Justice had a flag flying in front of his own home that indicates support for preventing the transfer of power to the elected president! I suppose I will take you at your word when you say that seems like a tiny issue to you…but you should take me at my word when I say it is a huge issue to me. And I am not alone.
If you want to argue that there are _some_ people who think it’s not a big deal, but are pretending to be outraged by it, then OK, sure, probably that’s true, there are a lot of people in the country and it’s very possible some of them are behaving that way. But I assure you that my outrage is entirely genuine and that I do not think this is a small issue.
Ah, seriously, not rhetorically, what gave you the “impression that there is no doubt”? And what evidence would convince you that this impression was not correct? For example:
https://abcnews.go.com/US/san-francisco-officials-appeal-heaven-flag-front-city/story?id=110671825
“San Francisco officials take down ‘Appeal to Heaven’ flag from in front of City Hall
The “Appeal to Heaven” flag had flown in the city’s Civic Center since 1964.”
Regarding: “I don’t think either Alito has ever denied that that is what those flags are intended to represent.”
Again, seriously, why do you think this? He said almost black-letter the opposite for that flag, same article:
“Alito said neither he nor his wife were aware of the “Appeal to Heaven” flag’s connection to the “Stop the Steal Movement.”
“She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings,” Alito wrote in the letter.”
The misleading implications are based on the logic error that if the Jan6’ers used a symbol, all uses of that symbol mean support for the Jan6’ers. This overlooks – or deliberately ignores – that Jan6’ers can be using symbols of evangelical Christianity or general right-wing anti-government sensibility.
My argument is that this is all deliberate stoking of outrage to trash Alito and create a phony political firestorm, employing a huge amount of misleading phrasing in a sleazy media manner which is colloquially called “lying” (though one could argue the most pedantic interpretation of the phrases is technically true).
You’re right, the slot is have denied that the heaven flag was intended to have a stop-the-steal message. They have not made that claim about the upside-down American flag, though, perhaps because that would be ridiculous. The flag was flying over their home a week after the capitol invasion.
Reading between the lines ever so slightly in that case, their claim, paraphrased, is that the upside-down flag was intended by Mrs. Alito as a kind of middle-finger to anti-Trump neighbors with which she was having a dispute. That is, it wasn’t Jan6 in specific, more like “Let’s Go Brandon”. That actually makes a lot more sense to me than the concept of doing it with the intent of supporting Jan6’ers themselves. That is, it wasn’t “intended to show support”, it was intended to annoy those neighbors. It’s absolutely a rude thing for her to do, but it shouldn’t be a national scandal. And Justice Alito said he asked her to take it down, but she refused. Try to put aside dislike of Alito, I don’t like him either. This is just trying to blow up a massive political “Gotcha!” from a petty personal dispute involving Alito’s wife.
Seth:
I’m with Phil on this one. People get in disputes with their neighbors all the time. Flying a flag upside down is a strange way to show disagreement with a neighbor.
But, sure, as scandals go nowadays, this is minor. It’s just a major political figure showing ambiguous symbolic allegiance to an insurrection. Meanwhile, other major political figures express explicit support for that insurrection, and I suspect we can agree that explicit support is worse.
Flying flags is a weird way to carry on a dispute with your neighbors. Apparently, Mrs. Alito is a weird person with an inordinate love of flags.
I think Andrew’s point is that personality qualities are orthogonal (more or less!) to the soundness of one’s work in scientific research, although soundness in this case applies to whether Alito should recuse himself. But it is muddied by bringing in a related but different point, that personality is orthogonal (m or l) to the quality of one’s belief system. It’s distracting because how nice a guy Oppie was is mostly unrelated to how nice his attraction to communism was and also how sound his work in physics and the Manhattan Project were. It could be related to one and unrelated to the other, right? (And then there’s the Cold War question of whether his political proclivities were related to his scientific and military work, which would also have to be established by evidence, not assumption.)
Then the Alito case sounds closer to Andrew’s previous posts regarding whether people with bad ethics can do good scientific work (my paraphrasing) than the honesty and transparency are not enough theme. Ms. Alito can be “the life of the party” but also an ethically-challenged MAGA Republican (and then there would be the complication regarding whether Mr. Alito bears any responsibility to recuse himself based on his wife’s actions/beliefs).
All of these appearance of bias stories are to me examples of “honesty and transparency are not enough.” Supreme Court votes are (to me) explictly transparent… the Justices have pages to explain why they said they what they said and why the opposite opinion is incorrect. Furthermore, every Justice has the ability to join only part of a decision and dissent or write a concurrence on any discrete section of an opinion. I don’t know how much tmore ransparency can reasonably be expected.
What troubles me is that critics don’t want to read and engage with the logic of a decision, or even when they do, they find it easier to criticize a binary criterion — the vote. To me, these disputes exemplify a different aspect of statistics… the use of a binary criterion as a variable in an anlysis when you have so much more data available .
I also agree that the complaints about the Justice’s bias are (pardon) trumped up. When Ginsberg called Trump a “faker” in 2016 in advance of any rulings she later made about Trump policies, I didn’t see anyone “on her side” calling for her recusal. (Sure, she “apologized,” but not for what she thought, but for her mistake in airing the opinion.
This reminds me of Francesca Gino’s failed attempt to defend herself from well-justified claims of research misconduct by posting videos of her conventionally desirable life. Whether or not Gino committed fraud is orthogonal to how much she has fun with her family, just as the extent to which Samuel Alito’s wife enjoys parties is irrelevant to the question of whether he himself supports the armed overthrow of the US government.
My wife certainly agrees with gec’s comment:
“Whether or not Gino committed fraud is orthogonal to how much she has fun with her family,”
One disagreement with the comment by gec: that video, as far as I am aware, was posted before any allegation surfaced. To me, the video is totally innocent and is indeed, charming. As far as I know, Gino never used it in her defense. I, however, have mentioned the video several times and have been criticized because of it every time.
Thomas and Alioto have spouses who insist on displaying their independence. Their spouses must avoid the appearance of impropriety for the public to maintain confidence in the Court. While the justices might still rule properly, the public, for good reason, will be skeptical.
There’s an old expression “Caesar’s wife must be above suspicion”. In a democratic society with deliberately divided power, it doesn’t carry quite as far, or there would be too many divorces.