Opinion | The strange case of Alito v. Alito

That is one weird marriage.

I am talking, of course, about Justice Samuel A. Alito Jr. and his flag-flying wife, Martha-Ann, and I am taking as my text Alito’s own recitations, most recently in a letter on Tuesday to Democratic Sens. Dick Durbin (Ill.) and Sheldon Whitehouse (R.I.), declining to recuse himself from hearing Trump-related election cases.

There are reasons to question Alito’s candor and judgment here, and I’ll get to those in a bit. For the moment, let’s just assume the facts are as the justice lays them out: Martha-Ann Alito, embroiled in an acrimonious dispute with a neighbor — a dispute related to the election, something that Alito notably neglects to say — took to semiotics, in the extreme form of an upside-down U.S. flag, to convey her distress.

Thus saith her husband the justice: “I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.”

Advertisement

Like I said, weird. Marriage is about respectful accommodation of competing needs. A Washington marriage — that is, a marriage involving one or more people in positions of authority or prominence — is about respectful accommodation of competing needs in the public spotlight.

My husband is active in politics, but we don’t have campaign signs on our lawn out of deference to my role as a journalist. During his many years of government service, I stayed away from writing about issues in which he was involved — you might say I recused myself — so as not to put either of us in an uncomfortable position. Appearances matter, and if your spouse is in the public eye, there are things you choose not to do, even if they would be otherwise unobjectionable.

Not the Alitos. “My wife and I own our Virginia home jointly,” Alito wrote the two senators. “She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.” As to the second flag, an “Appeal to Heaven” banner at their New Jersey vacation home, that property “was purchased with money she inherited from her parents and is titled in her name.”

Advertisement

Seriously? Is he really arguing that this is about tenancy by the entirety, or who owns what property in fee simple?

Alito wrapped himself in an unconvincing blend of faux feminism and free speech, with an Alito-esque helping of victimhood. “My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” he wrote. Yes, she does — and, like other spouses of prominent individuals, she has an independent responsibility, to her spouse and his institution, to behave appropriately.

More Alito: “She makes her own decisions, and I have always respected her right to do so.” As I’ve written about Clarence and Virginia Thomas, each of them gets to have their separate career, but when one impinges on the other, something’s got to give. To say that isn’t anti-feminist — it’s pro-ethics.

Advertisement

And then the victimhood: “She has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.”

I am no fan of protests at justices’ homes. But asking us to feel sorry about her “sacrifices” to “accommodate my service”? Give me a break. Being a Supreme Court justice is an honor that brings with it many privileges. So is being the spouse of a Supreme Court justice. And the more fundamental point is that these supposed sacrifices do not excuse otherwise inappropriate behavior.

And about that inappropriate behavior: One of the striking aspects of Alito’s letter is that it exposes his lack of candor. His first few renditions of the incident had the flag flying “briefly” (the statement provided to the New York Times) and “for a short time” (his statement to Fox News host Shannon Bream.) As The Post reported, and Alito now acknowledges, it flew “for several days.” In what world is that “briefly”?

Advertisement

Alito asks us to believe his assertions — his wife is the flag fanatic, not him; he wanted it taken down; he “had no involvement” in the decision to fly the “Appeal to Heaven” flag at their vacation home — but his behavior does not engender trust.

Even more important, the letter underscores that Alito recognized instantly that the upside-down flag presented a problem: “As soon as I saw it, I asked my wife to take it down.” Why, exactly, did he think the flag was a problem? If the flag was, merely, as Martha-Ann Alito claimed, an international symbol of distress, not an endorsement of “Stop the Steal,” then why was he so concerned?

And, more to the point: If he was alarmed then, why doesn’t the public have every reason to be alarmed now?

ncG1vNJzZmivp6x7uK3SoaCnn6Sku7G70q1lnKedZLyxtc2ipqerX2d9c4COaWxoamlkrq2106hkn6SRnHqrrc1vZKytoKeyrrGMnKauqqRisrW0yJyqZqqVmMK0rcto