The Flag Flap

The brouhaha regarding the Alito family’s flag practices has escalated.

The controversy originally erupted when it was revealed that the Alitos had flown an inverted American flag at their house shortly after January 6. The Alitos say that the flag was raised by Justice Alito’s wife, Martha Ann, in response to a neighbor who had placed obscene anti-Trump signs in his yard along with others that said the Alitos “were complicit” in Trump’s attempt to steal the election. Justice Alito denied playing a role in the hoisting of the flag and denied that it was a political protest but said that it reflected Mrs. Alito’s frustration with the neighborhood dispute.

The American flag code says, “The flag should never be displayed with the union (blue field of stars) down, except as a signal of dire distress in instances of extreme danger to life or property,” but the inverted flag has become a form of political protest on both sides.

Flying the inverted flag was wrong, both in terms of proper display and as an instance of apparent partisanship by a Supreme Court justice. There was no evidence of extreme danger in the situation, but there is also no evidence that Justice Alito had anything to do with it.

Having said that, I’m extremely skeptical that Martha Ann didn’t have a political agenda with the flag. Flying an inverted flag is not a logical or rational response to being called names by a neighbor (who seems to be a real jerk), but that does not go against the Supreme Court’s code of ethics, especially since Martha Ann is not a justice.

The problem escalated with reports that the Alitos flew an “Appeal to Heaven” flag outside their beach house. Also called the “Pine Tree” flag, the banner dates back to the Revolutionary War. The AmericanFlags.com blog notes that the flag was designed by Col. Joseph Reed, a secretary to George Washington, for use on six warships in 1775. The flag was adopted by the Massachusetts Navy in 1776. Similar flags were used even earlier.

The phrase, “appeal to Heaven,” comes from the philosopher John Locke, who wrote that people must sometimes depend on God for protection, while the symbolism of the pine tree is that of resistance to the king and parliament. In 1771, parliament passed a law that banned the harvesting of white pines with diameters greater than 12 inches. These trees were to be reserved for use as masts on ships, which meant that colonists could not use the trees on their own land. This led to the Pine Tree Riot in New Hampshire in 1772.

I’m a history buff, as I’ve mentioned before, but all of this was news to me. Despite reading a lot about the Revolution, the first time that I can ever recall seeing a Pine Tree flag was a couple of years ago, after January 6, when a neighbor posted one. I looked it up at the time and found that it was a Revolutionary War symbol that had been co-opted by the Stop the Steal movement. In fact, these neighbors also have a large “Q” decal on their car, which I viewed as a warning label when they moved in.

They haven’t flown the Pine Tree flag in a while, but they have had an inverted American flag in front of their house for a long time now. I consider this misuse of the flag as being disrespectful to both the flag and the United States.

I suspect that most Americans are like me in that they were unaware of the Pine Tree flag until a short while ago. Although I don’t recall seeing the flag on January 6, it was there along with Trump flags, Christian flags, and Gadsen (“Don’t Tread on Me”) flags.

The undated American Flags blog post notes the Pine Tree flag is “Popular among Republicans and Christians, it is seen as a symbol of Christian nationalism, often flying on the National Day of Prayer.”

Don’t confuse Christian Nationalism with Christianity. Christianity is a religion. Christian Nationalism is an authoritarian political ideology that replaces the personal relationship with Christ with government edicts that mandate what the Christian Nationalists see as “Christian behavior.” This is a pharisaical mindset that can go far beyond Biblical admonitions.

So that is the context in which the flag flew over the Alito beach house. Per Forbes, the flag was seen flying at the property at least four times between July and September 2023.

Is Samuel Alito a Christian Nationalist? I have no idea. He is a Christian and a Catholic (although I know some evangelicals who would argue that you can’t be both), and he is a conservative. Those intersection of those two demographics could explain the flag without him being a Christian Nationalist.

I’ll also note that Alito was part of the Supreme Court that Trump and his allies petitioned at least three times to hear cases relating to Trump’s attempt to steal the election. The neighbor who accused the Alitos of being “complicit” was probably unaware that the Court dismissed a Texas lawsuit seeking to deny certification of the vote in states that Trump lost. In that case, Alito wrote that he “would not grant other relief” aside from hearing the case since the Court has original jurisdiction in disputes between the states. In two other cases (Donald J. Trump For President Inc. vs. Boockvar and Kelly v. Pennsylvania), the Court declined to hear the Trump cases. If Alito is a Trumper or Christian Nationalist, his sympathies have not given Trump reliable votes in the election cases.

As far as Alito’s conduct with the flag, it does appear to violate the Supreme Court’s Code of Conduct, which states that justices should “avoid the appearance of impropriety in all activities,” but the code was not adopted until November 2023, after the Appeal to Heaven flag was flown. I haven’t seen evidence that it was flown since.

The code also lays out the grounds for recusal. The list is somewhat repetitive but it boils down to:

• Personal bias or prejudice concerning a party before the Court
• Personal knowledge of disputed facts
• Personal relationship with a party before the Court
• Expressing an opinion concerning the merits of a case during prior government or judicial service

None of these grounds for disqualification seem to apply to Alito, and the code states, “A Justice is presumed impartial and has an obligation to sit unless disqualified.”

It’s also true that other justices, such as the late Ruth Bader Ginsburg, have been far more politically active than Alito, who is not directly tied to flying the flag or being a Trump supporter. Needless to say, Ginsburg and others did not recuse themselves after directly criticizing parties to cases or having spouses who were politically outspoken.

And spousal activities are not covered by the Code of Conduct at all. While I do agree that SCOTUS spouses should act sensibly and not engage in political activity that reflects poorly on their justice, that is just my opinion and not a requirement. Maybe it should be codified since the actions of Martha Ann Alito and Ginni Thomas have both done a lot to discredit the Supreme Court.

The bottom line is that there is no evidence that Justice Alito did anything to violate the Code of Conduct or even that he is sympathetic to Donald Trump. There is much angst over Alito’s upcoming vote in the presidential immunity case, but I’ll bet that Alito will vote to affirm the idea that presidents do not have “total immunity.” The only question in my mind is where the Court will draw the line.

Having said all that, I do find it troubling that Supreme Court justices may be involved with the Stop the Steal movement. And even though Alito voted against Trump on the election lawsuits, his position on other cases, such as Moore v. Harper, which tested the independent state legislature theory, is more troubling. But again, having flawed viewpoints is not grounds for recusal, and anyone who thinks that Alito and Thomas will be impeached is fooling himself.

It’s also important to note that it isn’t just the left that is critical of the Alito flag-waving. Several prominent Republican senators agreed that flying the American flag upside down was a bad choice, although they may be retreating from that position now that it has become a political litmus test.

In my experience, military people are some of the biggest sticklers for correctly displaying the American flag. I’ve heard many complain about the pickup trucks that run down the road with an American flag secured behind the cab and flapping in the slipstream. I’d be willing to bet that many veterans are looking askance at the inverted flag as well, although they may not be comfortable saying so publicly.

But then we come to those on the right who are rushing to virtue signal by posting and buying Pine Tree flags. They were probably as unaware as I was of the flag and its history until the past few weeks, but now the Appeal to Heaven is a cherished symbol of the Revolution. I’m not buying it. For most of these people, the problem seems to be more the media calling attention to the hijacking of the Pine Tree flag by right-wing radicals rather than the use of the flag by the radical fringe itself.

This reminds me of nothing so much as the Confederate flag. There is an argument that the Confederate flag is a symbol of Southern heritage and history rather than a racist symbol. Once upon a time, I held this view myself.

But Atlanta talk radio host Neal Boortz (aka “the Talkmeister”) changed my mind on the issue. Boortz pointed out that maybe the Confederate flag was about Southern heritage at one point, but that changed when it was used by the Ku Klux Klan in the 1920s and the segregationists in the 1950s and 1960s. If people who weren’t racists wanted to keep the flag as a nonracial symbol of history and heritage, they should have spoken out when the racists adopted it. These days, it has become a racist symbol. (And for what it’s worth, the Confederacy was racist. If you don’t believe me, read their own words in their Declarations of Causes for secession.)

I can understand wanting to preserve the Pine Tree flag as a historical symbol, but if Republicans want to do that, attacking the media is not the right strategy. If Republicans want to prevent the Pine Tree from being co-opted as a hateful symbol, they need to weed the hateful people out of their party. The real problem is not that the Alitos flew a Revolutionary War flag, it’s that the Republican Party has been infiltrated by radicals and traditional Republicans are afraid to call them out.

The flag is not the real issue. The real issue is that Republicans continue to excuse and rationalize the Trumpist attack on the Capitol and attempt to steal the election. It is not the media’s fault that Republicans ignored the radical fringe usage of the Pine Tree flag until the Alito flag backlash.

I’ll believe that Republicans want to preserve the historic meaning of the Pine Tree flag when I see them start to call out QAnon, election deniers, and Christian Nationalists who fly the banner. Until then, my position is that good and reasonable people should not associate themselves with what has become a banner that is representative of right-wing extremism. If Republicans don’t like that, they have no one to blame but themselves for allowing the radicalism to take root in their party.

Let’s agree to respect the American flag and other historical symbols. Both sides love America and neither has a monopoly on patriotism. When one side tries to coopt national symbols, it is inherently divisive and damaging to national unity. The same applies to politicizing religion.

And finally, only fly the American flag upside down if you are in life-threatening danger, not when someone calls you names.