The flags were redundant

the flags were redundant

The flags were redundant

The two weeks from Jan. 6 to Jan. 20 in 2021 were tumultuous ones.

The riot at the Capitol, in which supporters of President Donald Trump attempted to block the finalization of Joe Biden’s victory in the 2020 presidential election, fell on that first date. On Jan. 13, Trump was impeached for his role in stoking the day’s violence — a week before Biden was slated to be inaugurated.

Despite the failure of the riot to protect Trump’s presidency, many of his supporters believed there might still be a way to block Biden’s presidency. It was during this period that Mike Lindell, founder of a pillow-manufacturing company, was photographed entering the West Wing holding a document that suggested a declaration of martial law might be warranted. It was also a period in which supporters and allies of the president otherwise sought to show their objections to Trump’s ouster and/or support for the outgoing president.

For some length of time during this period — it’s not clear precisely how long — an upside-down American flag, a traditional symbol of distress that had been appropriated by those arguing falsely that the 2020 election had been stolen from Trump, flew at a D.C.-area house.

The house belonged to Supreme Court Justice Samuel A. Alito Jr.

Alito denied involvement in placing the flag both to the New York Times, which first reported its appearance, and to Fox News’s Shannon Bream. The flag, he told the Times, had been “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” To Bream, he claimed that the neighbor had blamed his wife for the Capitol riot. In neither case did he provide comment on the intended meaning of the display.

On Wednesday, the Times had an update. At multiple points last summer, Alito’s vacation home on the Jersey Shore displayed a flag with its own political message. The “Appeal to Heaven” flag — displaying a pine tree under those words — flew at the top of a staff outside the residence. The Times notes that similar flags were carried by Jan. 6 rioters, but that’s probably because it had already become a symbol of right-wing Christian nationalism.

Writing for Rolling Stone, Bradley Onishi and Matthew Taylor described how an influential conservative Christian activist named Dutch Sheets embraced the symbol. (The prompt for their essay: House Speaker Mike Johnson (R-La.) displaying the flag near his office.)

Having been given the flag, Sheets “seized upon the flag as a symbol of the spiritual-warfare driven Christian nationalist revolution he hoped to see in American politics,” they wrote. “In 2015, he published a book titled An Appeal to Heaven and rolled out a systematic campaign to propagate this symbol in right-wing Christian circles.”

The phrase “an appeal to Heaven” comes from philosopher John Locke: “where the Body of the People, or any single Man, is deprived of their Right, or is under the Exercise of a power without right, and have no Appeal on Earth, there they have a liberty to appeal to Heaven, whenever they judge the Cause of sufficient moment.”

Alito didn’t respond to the Times’s requests for comment on the vacation home flag. Why it flew and who placed it is unclear. It is unclear who learned about the flag and its meaning or what prompted its display. Just as it is unclear why a neighbor’s insult would lead Alito’s wife to display the symbol that flew over their Virginia home.

But the flags are not needed to divine Alito’s political views or sympathies with the sentiments encapsulated by them. His positions are suggested, if not obvious, elsewhere. Not just his alliance with conservative political principles, but the specific defenses suggested by the flags: the centrality of religious conservatism and frustration with America’s evolution.

There are two speeches in particular we can look at to make this obvious.

The first was one Alito gave to the Federalist Society a few days after the 2020 election. In it, he condemned the restrictions that had been implemented to curtail coronavirus infections earlier in the year — restrictions at first embraced and then quickly abandoned by Trump.

Alito pointed to a specific example: Nevada limiting church attendance while allowing people to go to casinos. The context for his offering that example is important. It came only after Alito had complained that “in certain quarters, religious liberty is fast becoming a disfavored right,” outlining examples of legal fights endured by religious institutions. He offered praise to Trump for siding with one such institution.

Alito also pointed to a 2016 blog post in which a Harvard law professor mused about how to handle the losers of the culture war — meaning conservatives — comparing the left’s victory to the defeat of the Axis powers in World War II.

“Is our country going to follow that course” of punishing the defeated, Alito asked. “To quote a popular Nobel laureate, it’s not dark yet but it’s getting there.” At another point, he described some of this looming darkness: “When I speak with recent law school graduates, what I hear over and over is that they face harassment and retaliation if they say anything that departs from the law school orthodoxy.”

Alito’s comments about religious liberty were much sharper in a speech he gave at the University of Notre Dame in 2022.

“The problem that looms is not just indifference to religion. It’s not just ignorance about religion,” he said then. “There’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors.”

This idea that conservative voices and, specifically, conservative Christian ones are unfairly constrained is a central element of Trump’s politics. The former president has pledged to give prominence and power to Christians repeatedly, and has seen White evangelical Christians support him broadly in each of his presidential bids. The position Alito presented at Notre Dame aligns with Trump’s promises about the centrality of religious power, as does his record on the bench.

“Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power,” Alito said at another point in his Notre Dame speech. It echoed a line from his November 2020 one, when he excoriated the pandemic restrictions as an example of the “dominance of lawmaking by executive fiat.”

In that speech, he complained that decisions were being made by bureaucrats (the Deep State, if you will) and executive leaders (meaning governors like those in Nevada) instead of Congress. But his respect for Congress’s role evaporated last summer when legislators mulled new questions about the ethics boundaries at the Supreme Court.

“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period,” Alito said. That was in July, a month in which the “Appeal to Heaven” flag flew outside his New Jersey home.

Last month, Alito and his colleagues had the opportunity to consider the specifics of Trump’s efforts to retain power after the 2020 election — the effort at the heart of the Alitos’ tensions with their neighbors. The former president has argued that he cannot be federally prosecuted for attempting to overturn the election results because presidents have broad immunity for their official conduct. In April, the Supreme Court heard oral arguments on the issue.

In questioning attorney Michael Dreeben (who was arguing for special counsel Jack Smith in favor of the prosecution), Alito argued that the various protections from baseless indictments presented by the government were full of holes, however multilayered. Then he offered a concluding point.

“I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is the incumbent,” he said. “Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

In other words, he offered, couldn’t one argue that democracy is better protected by ensuring that no post-presidential indictments can take place than by … prosecuting efforts to retain power despite the election outcome?

“I think it’s exactly the opposite, Justice Alito,” Dreeben replied.

Alito’s question does not necessarily mean that he believes this to be the case; the point of oral argument is to test and evaluate arguments. But the line of questioning does suggest sympathy for Trump’s broad claim of immunity, perhaps the ultimate empowerment of “executive fiat.” It also, while offered in the abstract, minimizes Trump’s actions after 2020 to comport with his having lost a “hotly contested” race — rather than that Trump’s actions warranted a unique response, which is the argument Smith himself has made.

Again, we don’t know that Alito had any hand in selecting the flags that flew outside his homes. But those looking for public indicators of how he felt about Trump’s presidency or the primacy of religion could simply look at what Alito himself is saying.

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