Alito’s account of the upside-down flag doesn’t fully add up. Here’s why.
Supreme Court Justice Samuel A. Alito Jr. has offered multiple accounts of how politically charged flags came to fly outside his homes in Virginia and New Jersey — the type of display that is generally off-limits for judges, who must remain impartial and avoid even the appearance of bias as they handle cases.
Since the public revelation of the flags engulfed the nation’s highest court in criticism last month and prompted calls for Alito’s recusal from certain cases, the justice has said it was his wife who flew the banners, not him, and that she flew one of them after a neighborhood dispute. But his successive explanations — in a statement, an interview with Fox News and letters to Congress — have raised additional questions, and in some cases conflicted with known facts.
Alito has yet to fully explain some key aspects of the controversy: How long did an upside-down American flag fly at the Alitos’ Virginia home? Where did they get the “Appeal to Heaven” flag that flew at their New Jersey beach house? And more.
Here are the major discrepancies in Alito’s telling and what he still has not fully answered. Neither he nor his wife, Martha-Ann Alito, responded to a request for comment.
Alito has consistently cited the feud between Martha-Ann Alito and a neighbor as the backdrop for his wife raising the upside-down American flag at their Fairfax County, Va., home in the weeks after the Jan. 6, 2021, assault on the U.S. Capitol. But his description of the episode is contradicted at significant points by police records, neighbors’ descriptions of events and other facts.
Alito told Fox News reporter Shannon Bream the neighborhood dispute began when his wife went to speak with their neighbor Emily Baden in January 2021. Martha-Ann Alito was upset the woman was displaying an anti-Trump sign, with an expletive, “within 50 feet of where children await the school bus,” as Bream put it on X, formerly Twitter.
But Fairfax County schools were shuttered at the time because of the coronavirus pandemic and had been since March 2020. All but a tiny handful of students were learning virtually. Students did not return to the classroom until Feb. 16, 2021, after the flag episode occurred.
In addition, Baden and her mother said in interviews that the school bus stop near their home was moved before the dispute began and they confirmed no students were catching the bus at the time.
Baden told The Washington Post the row began shortly after Christmas 2020, when Martha-Ann Alito stopped by her home to thank her for taking down an anti-Trump sign featuring an expletive, which the justice’s wife said was offensive.
Baden said she told Alito that the sign would remain on display and had not been taken down, it had simply blown over. She also said Alito never mentioned the school bus stop. The conflict soon escalated.
Justice Alito has portrayed Baden and her then-boyfriend as the aggressors in the dispute, writing in letters to Congress that his neighbors had displayed a sign “attacking” his wife “personally.” But photos provided by Baden and interviews with a neighbor indicate the signs made no explicit mention of Martha-Ann Alito.
One featured the off-color reference to Trump on one side and the phrase “Bye Don” on the other. A second read “Trump Is a Fascist,” while a third read “You are Complicit.”
It’s possible the Alitos thought the latter sign referred to them, but Baden said it was directed at Republicans who she felt were complicit in the Jan. 6 attack on the Capitol. A neighbor who saw the signs at Baden’s house confirmed that none directly referenced the Alitos.
In her telling, Baden said it was Martha-Ann Alito who confronted them on a handful of occasions. After the initial encounter, Baden said Martha-Ann Alito glared at them from her car on Jan. 7, 2021, and ran down her driveway and spat at Baden’s vehicle on another occasion.
Justice Alito told Bream a key moment in the dispute came when he and his wife were walking in the neighborhood sometime after the initial conversation. A man got into an argument with Martha-Ann Alito and called her a vulgar epithet for part of a woman’s anatomy, according to the justice. In his letters to Congress, Alito also said the man followed them down the street.
But Baden said that while that confrontation with the Alitos involved both her and her then-boyfriend, it was actually she who uttered the epithet, an account corroborated by a neighbor who heard it. Baden said she could not recall whether she and her boyfriend then followed the Alitos down the street.
Justice Alito told Bream that following the exchange his wife was “distraught” and raised the upside-down flag. A photo obtained by the New York Times showed the flag flying on Jan. 17, 2021.
The profane encounter between Martha-Ann Alito, Baden and her then-boyfriend occurred about a month after the upside-down flag was raised, according to a phone call the boyfriend placed to police on that day. A Fairfax County, Va., government spokesman confirmed that call was placed on Feb. 15, 2021.
The most pivotal question about the upside-down American flag has yet to be fully answered: Martha-Ann Alito’s motivation for flying it.
Many liberals have said the raising of the flag in the weeks after the Jan. 6, 2021, attack on the U.S. Capitol suggests sympathy for the “Stop the Steal” movement or solidarity with the pro-Trump rioters who believed the 2020 election was stolen and had adopted the symbol at the time.
They have called for Justice Alito to recuse himself from a pair of high-profile cases related to efforts to block the election results, arguing the flag indicates political bias or creates the perception that Alito is not impartial. Alito has refused.
The Alitos have not explicitly addressed whether the upside-down flag had a connection to Jan. 6 or “Stop the Steal,” and Justice Alito’s comments about his wife’s motivation for flying it have shifted.
In comments to a Post reporter outside his home in 2021, Alito said his wife raised the flag in response to the neighborhood dispute and it was not political. Martha-Ann Alito, in her only known public comments about the flag, shouted at the reporter, “It’s an international sign of distress!” The upside-down flag does have a long history as a sign of distress in the military, and has been used by protesters of all political stripes at various times. Alito repeated his contention that a neighborhood dispute sparked the flag flying in a statement to the New York Times, which first reported the flag controversy last month. The justice then told Fox News reporter Shannon Bream the dispute began when his wife confronted a neighbor about an anti-Trump sign that featured an expletive, indicating the argument likely did have a political dimension. In letters Alito sent to Congress saying he would not recuse himself from the Jan. 6 cases, however, the justice’s explanation subtly changed. He said his wife flew the flag at a time of “great distress” over the neighborhood dispute, but also indicated it might not have been her only motivation, writing, “my wife’s reasons for flying the flag are not relevant for present purposes.”The letters include a much more specific explanation of why Martha-Ann Alito flew the “Appeal to Heaven” flag at the couple’s vacation home on the New Jersey shore last summer. That flag has origins in the American Revolution, but has recently been adopted by some Christian nationalists and was carried by some Jan. 6 rioters.
Alito said he “assumed” his wife was flying it for religious and patriotic reasons. He definitively said neither he or his wife knew the flag was associated with the “Stop the Steal” and it was not flown in solidarity with that movement.
Alito did not issue a similar denial for the upside-down flag that flew at his Virginia home.
A handful of neighbors who saw the upside-down flag at the Alitos’ residence said in interviews that they could not remember exactly when they first saw it but placed it in the latter half of January 2021, which matches the Jan. 17 date of the photo obtained by the Times.
Alito said in an initial comment to the Times that the upside-down flag flew “briefly.” Alito later told Bream it flew for “a short time.” In his most recent account in letters to members of Congress, Alito said he requested his wife take down the flag as soon as he saw it, but she refused for “several days.” Alito did not detail exactly when he saw the flag was up.
Some neighbors of the Alitos said they recalled seeing the flag flying for between two and five days.
As for Baden, she said she never saw the flag at the Alitos’ home.
