Flags flown outside Justice Samuel Alito’s homes raise concerns about his adjudication of 2020 election and Jan. 6 insurrection cases

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U.S. Supreme Court Justice Samuel Alito flew the inverted American flag and an “Appeal to Heaven” flag outside his homes. Because the flags symbolize former President Donald Trump’s supporters’ discontent with his 2020 reelection loss, some question Alito’s ability to preside fairly over cases related to the election and the Jan. 6, 2021, Capitol insurrection.

Key Players

Samuel Alito was appointed to the Supreme Court by the late President George W. Bush in 2005 and is known for his conservatism. He has been married to Martha-Ann Bomgardner since 1985.

Emily Baden, a San Francisco resident, previously lived in the Alitos’ northern Virginia neighborhood, emerging as a key witness to the household’s flag-flying activities.

Lauren Windsor, a self-described documentarian, politically aligns with the left. Windsor made recordings of Alito and Bomgardner during a Supreme Court dinner.

Further Details

On May 16, 2024, The New York Times published an article containing a photograph of an American flag hung upside down on the front lawn of the Alitos’ home in northern Virginia from Jan. 17, 2021, three days before President Biden’s inauguration. The article noted the inverted flag’s relationship to Trump supporters’ call to “Stop the Steal,” a reference to the embittered former president’s false claims that the 2020 election was “stolen” by Democrats.

The article sparked criticisms from Democratic officials and the public alike toward Alito, decrying the flag-flying and its apparent affirmation of Jan. 6, 2021, insurrectionists’ ill will toward the government.

“This stuff’s not normal,” Minnesota Gov. Tim Waltz (D) told CNN. “I’m just stunned that we would ever have had to have a Supreme Court justice explain why his wife was flying a flag upside down in response to an insurrection.”

Alito took a defensive stance the next day in an article published by Fox News, claiming his wife put up the flag in response to one flown by a neighbor reading “F— Trump” near a school bus stop. 

The Times then posted a second photograph of the “Appeal to Heaven” flag, which was carried by Capitol rioters on Jan. 6 to support Trump in Christian terms. It was flown outside the Alitos’ New Jersey vacation home on Long Beach Island, during the summers of 2022 and 2023. The revelation of this second politically charged flag linked to Alito heightened calls by Democrats for Alito to recuse himself from legal proceedings involving the 2020 election and the 2021 insurrection, since he was a “MAGA kindred spirit.”

With the Supreme Court set to decide key election cases, such as Trump’s claim of “absolute immunity” from election subversion charges and an insurrectionist’s challenge of an obstruction charge, calls for Congress to create a new ethics code for the court also reemerged.

Outcome 

Alito refuses to recuse himself, reasserts his wife’s right to Free Speech 

On May 29, in a letter distributed by the Supreme Court, Alito declined to take himself out of cases related to the 2020 election or the Jan. 6 insurrection 

“The two incidents you cite do not meet the conditions for recusal,” Alito wrote. “As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention.”

He pointed out that his wife, whom he claims put the flag up, is a private citizen who “possesses the same First Amendment rights as every other American.” While he reaffirmed that Bomgardner flying the inverted American flag was a result of a conflict with their neighbors, he claimed not to know what the “Appeal to Heaven” banner represented at the time she put it up. 

Sen. Dick Durbin (D-Ill.) followed up with a statement confirming that the Senate Judiciary Committee, of which he is chair, has been looking into media coverage of Alito to uncover “ethical lapses by some justices on the Supreme Court.” Other Congressional Democrats rebuked Alito’s decision not to recuse himself.

“Any unbiased and reasonable person would find laughable Justice Alito’s ‘the dog ate my homework, and I didn’t even know I had homework’ defense,” Rep. Hank Johnson (D-Ga.) told CNN. 

Trump, on the other hand, commended Alito on Truth Social.

“Congratulations to United States Supreme Court Justice Samuel Alito for showing the INTELLIGENCE, COURAGE, and ‘GUTS’ to refuse stepping aside from making a decision on anything January 6th related,” Trump wrote.

Former neighbor contradicts Alito’s defense

On June 7, NPR published an article offering a different perspective on the incident, in which Baden came forward as the neighbor whom Bomgardner had confronted. 

Baden said her family moved into the Alitos’ Virginia neighborhood in 2020. After Jan. 6, Baden, a self-proclaimed leftist, put up signs that stated, “You are complicit” and “Trump Is A Fascist.” The next day, Baden claimed that Bomgardner drove up to the house, “stopped there for a period of time,” and “glare[d] at” the family.

Although Baden says that she did not see the inverted American flag go up outside the Alitos’ home a week later, she drove past it prior to Biden’s presidential inauguration in 2021, to be met with Bomgardner yelling and “‘spit[ting] at [the] car.’”

These conflicts culminated in a more intense confrontation on Feb. 15, 2021, when Baden and her now-husband were collecting their trashcans and encountered the Alitos on a walk. According to Baden, Bomgardner referred to the two as “fucking fascists.’”

“That was when I spoke back,” Baden told NPR. “I just said, like, ‘How dare you behave this way? You represent the highest court in the land. What are you doing? I’m a stranger to you. This is because of my sign? That’s insane.’”

Baden stated that this was the last encounter between her household and the Alitos before she moved to San Francisco. However, she maintained that Justice Alito’s defense of flying the flags was “‘ludicrous.’”

Secret recordings showcase Bomgardners’ discontent

On June 10, 2024, Windsor uploaded secret recordings of Justice Alito and his wife, among other officials, at a Supreme Court Historical Society dinner that took place during the first week of June. Posing as a conservative journalist, Windsor steered the conversation toward the flag controversy.

Rebuking criticism from the “radical left,” Bomgardner can be heard stating she wants to raise “a Sacred Heart of Jesus flag” because she would “have to look across the lagoon at the Pride flag for the next month,” apparently referring to the view from the couple’s vacation home in New Jersey during Pride month.

“He’s like, ‘Oh, please don’t put up a flag,’” she said, referring to the justice. “I said, ‘I won’t do it, because I’m deferring to you. But when you are free of this nonsense, I’m putting it up and I’m going to send them a message every day, maybe every week I’ll be changing the flags.’”

Some have disapproved of Windsor’s underhanded means of obtaining the recordings, with Supreme Court Historical Society executive director James Duff “condemn[ing] the surreptitious recording of Justices at the event” in a statement.