Justice Alito’s Jan. 6 flag defense is just weird gender politics

by Noah Feldman

Martha-Ann Alito lets her freak flag fly. And her husband, Justice Samuel Alito, can’t do much about it, according to a letter he sent to two senators explaining why he won’t recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, when a mob tried to use violence to overturn the result of the 2020 presidential election.

Given that recusal is supposed to be based on whether a reasonable person knowing the facts would consider the judge biased, I think Alito made the wrong call. But I confess that I wish we lived in a more egalitarian world, where we could truly believe that the choice to fly the flags — an upside-down American flag (associated with election deniers) and an “Appeal to Heaven” flag (ditto) — belonged solely to his wife.

In his letter, the arch-conservative writes of Martha-Ann, “she makes her own decisions, and I have always respected her right to do so.” If reading those words from the author of the majority opinion in the Dobbs case drives you into a frenzied condemnation of Alito’s hypocrisy, I am not here to stand in your way.

But the letter, which can alternatively read not as fake feminism but as the lament of a disempowered husband, should not absolve us from asking the broader, more important question: How should we be thinking about the political opinions of the spouses or partners of the justices?

Although the letter presents itself as an answer to the legal question of whether recusal is appropriate, it quickly devolves into a fascinating congeries of tropes about how spouses interact.

With respect to the “Appeal to Heaven” flag, Alito’s strategy is a terse explanation of the division of flag roles in his household: “My wife is fond of flying flags. I am not.” (When he says he didn’t know what that flag meant, I believe him — I wasn’t aware of its Jan. 6 connotations either, and I’m a news junkie and a history nerd.) He goes on to say that she has flown many, many different flags over the years: patriotic, local, ancestral, touristic, seasonal, and religious. The resigned tone smacks of a long-suffering husband’s exasperation with his wife’s design choices.

Regarding the upside-down American flag, Alito says first that he “had nothing whatsoever to do with the flying of the flag” and didn’t even know it was there until it was “called to [his] attention.” Then he says: “As soon as I saw it, I asked my wife to take it down, but for several days, she refused.” The almost rueful quality hints to male readers (like the two senators to whom the letter is addressed) that a man’s wife doesn’t always obey. Women!

But this implicit picture of a man trying — and failing — to tame his insubordinate shrew of a wife is complicated by Alito’s reference to the “very nasty neighborhood dispute” that formed the backdrop to the raising of the upside-down flag. Neighbors displayed a sign that Mrs. Alito interpreted as a personal attack and (in front of the justice) called her “the vilest epithet that can be addressed to a woman,” reportedly the c-word.

The gender politics are subtle here. Alito is effectively saying that after his wife was subject to a gendered verbal assault — which occurred in front of him, and which his job rendered him powerless to defend her from — he could hardly then require her to forego the public response she had chosen. Disabled by his professional role from protecting his wife according to (heterosexist) gender norms, Alito lacked the masculine standing to tell her that she must take the down her flag because of his career.

This brings us to the part of Alito’s argument that actually is quasi-feminist, which is that his wife has both First Amendment rights and property rights of her own. Legally, he’s right. But of course, the question isn’t whether she has the right to fly the flags, but rather whether the flags could cause a reasonable person to think Justice Alito was biased in cases related to Jan. 6.

On that question, the best egalitarian answer isn’t completely clear. On the one hand, marriage is a partnership, and the law has long treated spouses as one legal entity. On the other, equal partners should be able to pursue their own life paths without everyone assuming that they agree with each other — and without assuming that one partner has veto power over the views the other expresses, even from the flagpole of the family home.

If you ask me, we would be better off admitting that we don’t always understand what’s going on inside anyone’s relationship with respect to roles, practices and power. As a default, we should treat couples as distinct people with distinct points of view. If Justice Alito wants to stand up for a woman’s right to choose her flag, it might make him a hypocrite. But it doesn’t make him wrong.

Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University.