Wife of Justice Alito called upside-down flag ‘signal of distress’

The wife of Supreme Court Justice Samuel A. Alito Jr. told a Washington Post reporter in January 2021 that an upside-down American flag recently flown on their flagpole was “an international signal of distress” and indicated that it had been raised in response to a neighborhood dispute.

Martha-Ann Alito made the comments when the reporter went to the couple’s Fairfax County, Va., home to follow up on a tip about the flag, which was no longer flying when he arrived.

The incident documented by reporter Robert Barnes, who covered the Supreme Court for The Post for 17 years and retired last year, offers fresh details about the raising of the flag and the first account of comments about it by the justice’s wife.

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.

The upside-down flag has long been a sign of distress for the military and protest by various political factions. In the fraught weeks before and after the Jan. 6, 2021, attack on the U.S. Capitol, it had also been adopted by supporters of the “Stop the Steal” movement, which embraced Donald Trump’s false claims that Joe Biden stole the election from him. Some of the rioters who participated in the attack had carried upside-down American flags with them.

The display of the politically charged symbol outside the Alitos’ home became a public controversy last week after the New York Times reported on it, raising new ethics questions for the Supreme Court as it prepares to issue pivotal rulings in two cases related to efforts by Trump and his supporters to block Biden’s 2020 election victory.

Alito said in a statement to the Times that he had no involvement in the flag being flown at his home, which he said was briefly raised by his wife in response to a neighbor’s use of “objectionable and personally insulting language on yard signs.”

Samuel Alito told Fox News last week that the signs attacked his wife directly. Martha-Ann Alito has not publicly commented on the recent reports.

On Jan. 20, 2021 - the day of Biden’s inauguration, which the Alitos did not attend - Barnes went to their home to follow up on the tip about the flag. He encountered the couple coming out of the house. Martha-Ann Alito was visibly upset by his presence, demanding that he “get off my property.”

As he described the information he was seeking, she yelled, “It’s an international signal of distress!”

Alito intervened and directed his wife into a car parked in their driveway, where they had been headed on their way out of the neighborhood. The justice denied the flag was hung upside down as a political protest, saying it stemmed from a neighborhood dispute and indicating that his wife had raised it.

Martha-Ann Alito then got out of the car and shouted in apparent reference to the neighbors: “Ask them what they did!” She said yard signs about the couple had been placed in the neighborhood. After getting back in the car, she exited again and then brought out from their residence a novelty flag, the type that would typically decorate a garden. She hoisted it up the flagpole. “There! Is that better?” she yelled.

“I had no involvement whatsoever in the flying of the flag,” he said, using wording almost identical to the statement provided to the Times last week. “It was placed by Mrs. Alito solely in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Since the Times article, dozens of Democratic lawmakers and some legal experts have called for the justice to recuse himself from the 2020 election-related cases, saying the upside-down flag outside his home raises questions about his impartiality or creates the appearance of bias. He has drawn rebukes from some Republicans as well.

The spotlight intensified Thursday after a second Times article reported that a different flag, embraced by some Christian nationalists who want to bring religion into American government and also carried by Jan. 6 rioters, has been flown outside the Alitos’ vacation home in New Jersey in recent months and years. Three people who live or vacation in Long Beach Island, N.J., told The Post on Friday that the “Appeal to Heaven” flag was on display there last summer, and provided photos of it. The Post also found an image of the flag at the property on Google Maps.

In Virginia, a neighbor who lives down the street from the Alitos told The Post on May 17 that her adult daughter had placed the protest signs that prompted the dispute with Martha-Ann Alito outside her home in the weeks after the 2020 election. Martha-Ann Alito and the neighbor’s daughter clashed over the signs in January 2021, both the mother and a second neighbor said. The daughter, who now lives on the West Coast, declined an interview request.

The Alitos did not respond to requests for comment from The Post in recent days about the neighbors’ accounts or the two flag controversies.

The recusal statute standard that applies to federal judges and justices is not limited to actual bias - it also includes the appearance of bias. For that reason, some court experts and retired judges said in interviews that both Alito and Thomas should recuse from the Jan. 6-related cases because of their wives’ actions.

Outside of his home in 2021, Alito indicated that the flag was his wife’s doing - not his - noting that they live together in the house and that the spouses of justices are free to express their opinions.

Retired federal judge Nancy Gertner, now a professor at Harvard Law School, said in an interview this week that she is pleased that spouses of judges and justices are not expected to stay silent. But when a partner’s views encroach on cases before the justice’s courtroom or their shared home, she added, it’s a very different situation.

The “notion that [Justice Alito] let it happen or didn’t pay attention is extraordinary,” Gertner said. “He understood the context. They were having a political battle, and this was a political statement.”

“If Alito and Thomas spell the difference between one outcome or another, that would be simply outrageous,” she said of the cases related to the 2020 election and the Jan. 6 attack. One case deals with whether Trump may be criminally prosecuted for his efforts to remain in office after losing the election. The other asks whether the Justice Department can use an obstruction charge to prosecute more than 300 Jan. 6 rioters. Decisions are expected by the end of June.

If her husband had tried to put up a sign or flag at their house in response to something a neighbor displayed on their block that was inconsistent with or critical of his civil liberties work, Gertner added: “One of two things would have happened: A) a divorce and B) surely recusal.”

Martha-Ann Alito is known to have strong political opinions in private settings but has not been politically active in the way that Ginni Thomas has been, several people who know the Alitos said, speaking on the condition of anonymity to discuss their interactions. Campaign finance records show that in 2020 she made a $250 political donation to a Republican Senate candidate from Virginia, earmarked through the Republican fundraising platform WinRed.

One neighbor recalled a conversation with Martha-Ann Alito that turned to abortion after her husband wrote the majority opinion overturning Roe v. Wade in 2022. The neighbor, who described himself as a liberal, told her it was a difficult issue. He said Martha-Ann Alito responded flatly: “It’s not that difficult at all.”

The Dobbs v. Jackson Women’s Health Organization decision, which eliminated the nationwide right to abortion after nearly 50 years, led to protesters showing up at the homes of conservative justices including Alito, adding to the polarization and strain that his neighbors said has descended onto their cul-de-sac in recent years.

“She’s passionate,” the man who talked to Martha-Ann Alito about abortion said.

“He is judicious,” she said then.

The couple married in 1985, after Alito had relocated to Washington to serve as an assistant to the solicitor general during the Reagan administration. They have two grown children.

Martha-Ann Alito has spoken publicly about being raised in a military family and her work for homeless veterans. Her father served 20 years in the U.S. Air Force, a role that sometimes required him to be away for lengthy stints. She was born at Fort Knox, the military base in Kentucky.

At the University of Kentucky, she studied comparative literature and received a master’s degree in library science. During a 2010 speech at her alma mater, she expressed frustration with the national media and reporters who had descended on the couple’s street to interview neighbors and family during the confirmation process.

She described “daily ad hominem attacks” against her husband, according to an article about the speech in the Lexington Herald-Leader, saying they “bordered on the ridiculous.”