The new details – Burns’ exchange with Alito and his wife – emerged over the weekend. Burns wrote a Washington Post article in January 2021 about justices who didn’t attend the inauguration, which also included a statement from his spokesperson. But when he arrived at his Northern Virginia home, Alito and his wife had left the house and were getting into their car. The justice’s wife, Martha Ann Alito, asked them to leave the premises before Burns was told why he was there.
She called the flag an “international crisis signal.” Meanwhile, Alito “denies that the flag was flown upside down as a political protest, saying it arose from a neighborhood dispute and that his wife had put it up,” our recent report explains. This echoes what Alito said when asked by The New York Times for comment on its original reporting on the upside-down flag.
Flying the flag upside down is actually a symbol of distress, and in January 2021, that was pretty common sense, as the upside-down flag became a symbol of resistance to President-elect Biden and was also carried by those who participated in the storming of the U.S. Capitol on January 6, 2021.
A second Times story detailed the dispute with the neighbors, with reporter Jodi Kantor revealing that after the attack on the Capitol, a family just down the street from the Alitos’ had put up homemade signs in their yard reading “Trump is a Fascist” and “You’re Complicit.” The latter sign wasn’t targeted at the Alitos family, but Republicans in general, neighbor Emily Burden told Kantor.
Perhaps, but the street they live on is a cul-de-sac, and Baden’s is near the entrance, so the Alitos would have had to drive past it to get to Baden’s house, which is just a few doors down. It’s no wonder the Alitos felt targeted.
But this raises another question: if the flag was intended as a rebuke to the Burdens, it would not have been an effective one, since there would have been no reason for the Burdens to go any further down the dead-end road. In fact, Emily Burden told Cantor that she never saw the flag at all.
Sen. Alito sent a letter to Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-Iowa) on Wednesday arguing that they should not distance themselves from decisions regarding Donald Trump’s efforts to remain in power after losing the 2020 election.
“I am confident that a reasonable person not motivated by political or ideological considerations or a desire to influence the outcome of the Supreme Court’s decisions would conclude that the events described above do not meet the test for recusal,” he wrote.
The events recounted centered around a flag, but he gave no direct explanation for it.
“My wife’s reasons for raising the flag are irrelevant to our present purposes,” he wrote in the letter, “but I am aware that at the time she was greatly distressed by a very nasty neighborhood dispute in which I had no involvement whatsoever.” Among other factors, he wrote, the dispute involved a man calling her “the vulgarest language that can be spoken to a woman.”
The Times reports that the exchange happened in mid-February, not before the inauguration, which is why the flag was seen outside his house at the time. Emily Burden’s version of the incident was corroborated by her police report.
But the report notes that Burns had more than one encounter with the Badens before her arrival. The first was on Jan. 7, the day after the Capitol attack and 10 days before the flag was photographed outside Alito’s house. The Alitos and Badens had also confronted each other at some point on Jan. 20, before Burns’ visit. It was this encounter that Burns likely had in mind when she asked Alito if the flag had political meaning.
In his letter, Alito again asserted that he has no ties to the flag.
“I was not even aware of the upside-down flag until it was pointed out to me. When I saw it, I asked my wife to take it down, but she refused for several days,” he wrote. He framed the effort in startlingly legalistic terms: “Because my wife is a co-owner of the home, she has the legal right to use the property as she sees fit, and there was no additional step I could have taken to get the flag taken down sooner,” he continued.
This is a shocking claim. He clearly believed the flag should be taken down, but his efforts to make that happen were thwarted by Martha Ann Alito’s property rights. You’ll also notice that his letter suggests the flag was not a response to the Burdens, but rather that it was flying at a time when his wife was, coincidentally, “very embarrassed” by their neighbors.
He maintains that the reason the flag was flown is “irrelevant to our present purpose,” but the letter’s purpose was to establish that the flag does not represent his views on Trump’s efforts to stay in power.
What we’re left with is that Alito didn’t raise the flag, but he didn’t make much of an effort to take it down either. The flag flew days after the most bitter confrontation with the neighbors, and if it was intended as a signal to the neighbors, they were unlikely to see it.
We also know that Alito’s coronavirus concerns are too significant to attend Biden’s inauguration, but not significant enough to warrant ordering a Washington Post reporter to stay home when he shows up that day. And we also know, in Alito’s view, that any objective observer shouldn’t let these events call into question his views of the former or current president.
