The Media Today

Seeing the signs

May 28, 2024
Associate Justice Samuel Alito joins other members of the Supreme Court as they pose for a new group portrait, Oct. 7, 2022, at the Supreme Court building in Washington. (AP Photo/J. Scott Applewhite, File)

Earlier this month, Jodi Kantor, of the New York Times, reported that in the days after the insurrection in January 2021, an upside-down American flag flew outside the home of Samuel Alito, the conservative Supreme Court justice. In the past, Kantor noted, the upside-down flag has been a symbol both of military emergency and of diverse political causes—but by the time it flew at Alito’s house it had taken off “as never before,” as an emblem of the push to overturn Donald Trump’s loss in the 2020 election. In a brief statement to the Times, Alito said that his wife had hoisted the flag in response “to a neighbor’s use of objectionable and personally insulting language on yard signs.” He elaborated, to Fox News, that the neighbors in question displayed a “F— Trump” sign then personally blamed Alito’s wife for the insurrection after she objected, leading her to raise the flag in distress (an explanation that Jay Willis, of Balls and Strikes, likened to “taking great offense to being unfairly smeared as a Yankees fan, and building a statue of Derek Jeter in the front yard to prove the haters wrong”).

This wasn’t the end of the story—last week, Kantor and her colleagues Aric Toler and Julie Tate reported that a flag known as the “Appeal to Heaven” was flown last summer at a beach house belonging to the Alitos in New Jersey. (The Times obtained photos of the flag and also found it in a Google Street View image of the property; this time, Alito declined to comment.) This flag, too, has a long history—the phrase “appeal to heaven” can be traced to the Enlightenment philosopher John Locke; George Washington is said to have flown the flag during the Revolutionary War—but it now stands, the Times reported, as a symbol of support for “Trump, for a religious strand of the ‘Stop the Steal’ campaign and for a push to remake American government in Christian terms.” Speaking on MSNBC after this second article dropped, Chris Hayes noted that, against his expectations, the story of Alito and his flags had become “a drip drip drip kinda scandal, one that unfolds in multiple parts through multiple news cycles.” 

It is also now a story about the media itself. Over the weekend, the Washington Post got in on the action, reporting that Alito’s wife told Robert Barnes, a now-retired Supreme Court reporter for the paper, that the upside-down flag was “an international signal of distress” back in January 2021 (while also exhorting Barnes to “get off my property”). The Post, however, decided not to run a story on the episode at the time, deeming it not to involve Alito himself or to be clearly political. Cameron Barr, then a senior managing editor at the Post, told Semafor that he took responsibility for the decision not to publish; he’d suggested a broader story on the neighborhood dispute, he said—one that would include the flag as a detail—but it never came to fruition. “In retrospect, I should have pushed harder for that story,” Barr said. (Marty Baron, then the top editor, said he hadn’t known anything about it.)

Semafor’s Ben Smith suggested that the Post’s decision not to run a story on the flag—and the fact that such a call is “hard to imagine” now—reflects a “pre-Dobbs and post-Dobbs” division in coverage of the Supreme Court, a reference to the 2022 decision, authored by Alito and leaked to the press in advance, that ended the constitutional right to an abortion and damaged the court’s “carefully-cultivated reputation as an institution above the partisan fray.” In the process, Smith argues, the decision helped settle a journalistic debate (which we’ve explored in this newsletter) as to whether justices should be covered as jurists who hand down impartial rulings from on high or politicians with outside views and interests worthy of investigation.

This is a fair argument—but as I see it, it would be a mistake to view the Dobbs decision as a clean break between the former, more deferential model of Supreme Court coverage (which, critics argue, persists to this day in some precincts) and the latter, either in general or as the debate applies to the Alito flag story. As Vanity Fair’s Michael Calderone points out, it’s “hard to fathom” editors’ having passed on the latter story even in a pre-Dobbs world. And as Chris Geidner wrote in his newsletter, Law Dork, the Post could have published the flag story at any point in the past three years—not least in the context of several post-Dobbs rulings linked to the insurrection and Trump’s role in it, and stories concerning the justices’ conflicts of interest. 

The Post’s oversight and the flag story as a whole also play into much broader media debates than the long-running one over journalism about the court—offering lessons for our coverage of US democracy as an ecosystem and the increasingly radicalized political right that threatens it. The story speaks to the importance of parsing once-obscure symbols as part of this work. But it also points to the limitations of that approach as threats to democracy hide in plain sight.

Sign up for CJR's daily email

While some voices on the right have criticized the upside-down flag at Alito’s home, others (including the Wall Street Journal, in an editorial with the disappointingly pleasing headline “Justice Alito’s Latest Vexing Vexillology”) have variously dismissed the story as an overblown media smear campaign aimed at delegitimizing Alito’s rulings from the bench, and defended his flying of the “Appeal to Heaven” banner in particular, pointing to its varied history and arguing that just because insurrectionists carried it on January 6 doesn’t make it an insurrectionist symbol. (The Journal’s editorial board, among others, noted that Mike Johnson, the Speaker of the House, has also flown the latter flag outside his office after a pastor gifted it to him.) Even some journalists who have covered January 6 closely admitted that they didn’t know much about the “Appeal to Heaven” flag until the Times’ reporting on Alito centered it in the news cycle. 

I see both of the Times’ articles about Alito as perfectly legitimate, even if the substance is not identical; indeed, both play into an interesting broader story about political symbols and their appropriation by the modern right-wing movement, a story that is sometimes very overt but sometimes rests on winks and nods and plausible deniability that can be hard for the uninitiated to decipher. (Johnson’s flying the “Appeal to Heaven” flag is not an endorsement of Alito’s intentions as much as an invitation to probe Johnson’s own Christian-nationalist politics, which have sometimes gotten lost in recent coverage of his legislative machinations.) Deciphering such symbols with clear eyes but also appropriate nuance is important work. Whether or not you think the “Appeal to Heaven” standard is an insurrectionist symbol, it is clearly more than just that. 

Perhaps because of this complexity—but also, perhaps, due to Alito’s refusal to clearly explain his motives, and to the well-worn grooves of traditional court reporting—the story of his flags has often been framed around the perception of political bias on the court and associated demands that he recuse himself from ongoing election-related cases. This, too, is fair; the flags also play into a broader story about ethics rules for the justices and their lack of enforceability. 

But both of these broader stories—what Alito’s flags mean and what they are seen to mean—matter less than what Alito himself actually thinks about American democracy. Sometimes, at least, media hand-wringing about the unfortunate perception of judicial bias clings, at least implicitly, to the assumption that justices can ever be above the political fray—an increasingly untenable assumption, both pre- and post-Dobbs—while putting the cart of public trust before the horse of justices’ earning it. Last week, Alito wrote the court’s opinion as it threw out a lower-court finding that Republicans in South Carolina had racially gerrymandered a congressional district in the state. His rationale, committed to paper, will likely prove a more consequential story for democracy than the flags that flew at his homes. But, while the ruling garnered significant media attention, the flag story arguably drowned it out.

Also last week, away from the court, Trump’s Truth Social account reposted a video displaying faux newspaper text about a Trump victory, some of which referred to the creation of a “unified Reich.” Major news outlets quickly wrote up stories about the video and its apparent allusions to Nazi Germany, sometimes quoting President Biden, who accused Trump of using “Hitler’s language.” But Trump’s campaign insisted that the staffer responsible for reposting the video hadn’t seen the text in question (which, in context, was actually a reference to a German polity that preceded Hitler’s rise to power). Indeed, the wording appeared to have originated on a template sourced from a stock-image site. Eventually, CNN’s Jon Sarlin tracked down its creator, a Turkish graphic designer named Enes Şimşek. “This is just a template,” Şimşek said. “And, also, I’m not a Nazi.”

As with Alito’s flags, Trump’s reposting of the video played into interesting stories about his far-less-deniable allusions to Nazi Germany and the porous boundary between his political world and that of far-right memesmiths who themselves traffic in winks and nods. As with Alito and the flags, though, these stories, and the debate around Trumpworld’s intentions in this one instance, shouldn’t drown out the things Trump is willing to say out loud. Last week, the Times published another story that appeared to get less attention than its Alito flag coverage, outlining, with the help of charts, how Trump has baselessly cast doubt on the integrity of the coming election about once a day since announcing his reelection campaign—dwarfing his use of such rhetoric in 2016 and 2020. When it comes to the future of democracy, some important stories are coded. Often, though, those that matter most need no deciphering.


Other notable stories:

  • Annie Karni, of the Times, profiled John Fetterman, the Pennsylvania senator who won election as a progressive but has increasingly picked fights with the left, not least over his staunch support for Israel. Fetterman seems to be enjoying “the strange new respect he commands from right-wing media outlets that once dismissed him as a vegetable and lobbed sexist attacks at his wife,” Karni writes (referring to a stroke that he suffered in 2022). Where staffers once curated his news consumption, Fetterman now “sometimes appears sucked into a vortex dominated by social media, the New York Post and Fox News, where for the first time in his political career, he is receiving approving coverage.”
  • Last summer, Viktoria Roshchina—a Ukrainian journalist who had already been detained in Russian-occupied territory in 2022—went missing after embarking on a reporting trip in an occupied zone, sparking concern among press-freedom groups. Yesterday, Ukraine’s national journalists’ union reported that Russia’s defense ministry recently confirmed to Roshchina’s family that she is being held again; the International Committee of the Red Cross has confirmed the ministry’s claim but said that it currently has no access to Roshchina. The Kyiv Independent has more details.
  • Last week, Brazil’s Supreme Court ruled that the practice of filing lawsuits against the same journalist or media organization in multiple geographic jurisdictions can be considered judicial harassment, and that, in such cases, those targeted can request that the cases against them be aggregated and heard in the place where they live. The Committee to Protect Journalists welcomed the ruling as “an important step towards guaranteeing press freedom” in Brazil, noting the financial burden of the lawsuit tactic.
  • And Morgan Spurlock, the documentarian who ate nothing but McDonald’s for thirty days for the 2004 film Super Size Me, has died. He was fifty-three. The Times notes, in an obituary, that Spurlock “could be considered a forerunner of TikTok influencers and citizen-journalist YouTubers”—but his methodology was later questioned, and in 2017 he admitted in a statement to multiple instances of sexual misconduct.

ICYMI: Why the media should listen to voters’ ‘wrong’ answers in polls

Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.