June 14, 2024

Saluti Law Medi

Rule it with System

Inside the Clash That Prompted the Alitos’ Upside-Down Flag

The police in Fairfax County, Va., received an unusual phone call on Feb. 15, 2021. A young couple claimed they were being harassed by the wife of a Supreme Court justice.

“Somebody in a position of authority needs to talk to her and make her stop,” said the 36-year-old man making the complaint, according to a recording of the call reviewed by The New York Times. The officer on the line responded that there was little the police could do: Yelling was not a crime.

The couple placed the call after a series of encounters with Martha-Ann Alito, wife of Justice Samuel A. Alito Jr., that had gone from uneasy to ugly. That day, Emily Baden, whose boyfriend (now husband) contacted the police, had traded accusations with Mrs. Alito, who lived down the street. In a recent interview, Ms. Baden admitted to calling her a lewd epithet.

The clash between the wife of a conservative Supreme Court justice and the couple, who were in their 30s, liberal and proud of it, played out over months on a bucolic block in Alexandria. It was the kind of shouting match among private citizens, at the height of tensions over the 2020 election, that might have happened in any mixed political community in America. But three years later, that neighborhood spat — which both sides said began over an anti-Trump sign — has taken on far greater proportions.

The Times reported this month that Justice Alito’s household flew an upside-down flag, which had been adopted as a symbol of the “Stop the Steal” campaign, in January 2021. The justice, who did not participate in the contentious neighborhood exchanges, cited the dispute as the reason his wife had raised the flag.

The conflict in the Virginia neighborhood does not explain why a second flag associated with the Jan. 6 riot, as well as with a Christian nationalist movement, later flew at the Alitos’ New Jersey beach house. The justice has offered no explanation for that flag, which The Times reported on last week.

Since these incidents came to light, Justice Alito has come under sharp scrutiny, with Democratic lawmakers and legal experts calling for him to recuse himself from matters related to Jan. 6. Ethics experts and former judges said that a neighborhood dispute — or a spouse’s beliefs — do not justify violating the rule that judges should avoid any appearance of political opinion or bias on issues that could come before the court.

In the coming weeks, the court will rule on two key cases that will shape how accountable the Capitol rioters and former President Donald J. Trump can be held for Jan. 6 and surrounding events. The decisions are expected to influence his chances at regaining the White House this fall.

Amid the controversy, Ms. Baden said she was surprised to find herself playing a central role in Justice Alito’s account about a war of words, political signs and a flag. “I never saw the upside-down flag, never heard about it,” she said.

To better understand the clash, The Times interviewed Ms. Baden, her mother and her husband, as well as other neighbors, and reviewed the texts that Ms. Baden and her husband sent to friends after the episodes. Justice Alito, who did not respond to questions for this article, has in recent weeks given his own explanation of what happened.

There are some differences: For instance, the justice told Fox News that his wife hoisted the flag in response to Ms. Baden’s vulgar insult. A text message and the police call — corroborated by Fairfax County authorities — indicate, however, that the name-calling took place on Feb. 15, weeks after the inverted flag was taken down.

Justice Alito’s version of events was that the flag “was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs,” he said in a statement to The Times. Mrs. Alito, 70, who has never sought a public role, has not spoken out about the controversy.

The justice later elaborated in an interview with Fox News, saying that in January 2021 a neighbor on the block displayed a vulgar anti-Trump sign, near where children wait for the school bus. Mrs. Alito complained to the neighbor. “Things escalated and the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks,” tweeted the Fox News reporter who interviewed the justice.

While the Alitos were on a neighborhood walk, “there were words between Mrs. Alito and a male at the home with the sign,” the network reported. The justice said the man used “vulgar language, ‘including the C-word,’” After that exchange, “Mrs. Alito was distraught and hung the flag upside-down,” the Fox reporter relayed.

But in the Baden family’s version, the justice’s wife initiated the conflict. “Aside from putting up a sign, we did not begin or instigate any of these confrontations,” Ms. Baden said later.

During the gloomy Covid summer of 2020, Ms. Baden, then a 35-year-old actor and restaurant server in New York, moved back to her mother’s home in Alexandria, Va., eventually staying for a year. Her then-boyfriend, who also grew up in the area, returned as well. The couple adopted a pandemic puppy, took walks around the neighborhood — there was little else to do — and provided company for Emily’s retired mother. (Ms. Baden’s husband would speak only on the condition of anonymity, because his employer requires staff members to keep their political views private.)

The couple participated in Black Lives Matter protests in Washington, propped up Biden-Harris signs, and on the Saturday in November when the election was called, whooped and danced in the streets of the nation’s capital. When they got home, they displayed a political sign they had made from torn-up Amazon boxes, saying “BYE DON” on one side and “Fuck Trump” on the other.

Ms. Baden’s mother, Barbara Baden, a 75-year-old former executive at the Public Broadcasting Service and longtime resident, said she hesitated over the sign at her home, because she feared it looked “tacky.” But she left it up because she did not want to interfere with what she saw as the couple’s expression of political concern. “They made the signs with good intent,” she said.

Shortly after Christmas, as Emily Baden was with her dog in her front yard, an older woman approached and thanked her for taking down the sign, which had merely blown down. Ms. Baden realized that the woman was Martha-Ann Alito. The sign was offensive, Mrs. Alito said, according to both the justice’s account and a text message from Ms. Baden to her boyfriend.

Ms. Baden told her the sign would stay up, she recalled in the interview. The family was taken aback: Though the Badens and the Alitos lived just a short distance apart, Barbara Baden couldn’t recall ever communicating with the justice’s wife beyond a neighborly wave. In the interview, Emily Baden could not remember whether she put the signs up again.

Then came Jan. 6. Rocked by the violence and threat to democracy, the couple soon put up new signs in their yard, saying “Trump Is a Fascist” and “You Are Complicit.” Emily Baden said in interviews that the second sign was not directed at the Alitos, but at Republicans generally, especially those who weren’t condemning the Capitol attack.

Soon afterward, her mother took them down, out of safety concerns. “Look what these people can do,” she said in an interview, recalling her fears at the time about the mob that had stormed the Capitol. “I do not want to mark my house.”

It’s not clear whether Mrs. Alito saw those signs, but the day after the Capitol riot, as the couple parked in front of their home, she pulled up in her car, they said. She lingered there, glaring, for a long moment, recalled the couple, who texted their friends about the encounter.

On Jan. 17, the upside-down flag hung at the Alito household, according to a photograph obtained by The Times. Neighbors say it was up for a few days. If the flag was intended as a message for the Badens, whose home does not have a direct view of the Alito residence, they missed it, they said.

The inauguration of President Biden, held three days later, was attended by six Supreme Court justices. Justice Alito and two others skipped it out of concerns about Covid, a court spokeswoman said at the time. That day, Ms. Baden and her then-boyfriend decided to drive past the Alito home. “There was a part of me that’s like, let’s see what’s going on,” Ms. Baden said.

Mrs. Alito happened to be standing outside. According to interviews with Ms. Baden and her husband, as well as messages they sent to friends at the time, Mrs. Alito ran toward their car and yelled something they did not understand. The couple continued driving, they said, and as they passed the Alito home again to exit the cul-de-sac, Mrs. Alito appeared to spit toward the vehicle.

The couple, still shaken by the Capitol riot, said the encounter left them feeling uneasy and outmatched by the wife of someone so powerful.

The same day, a Washington Post reporter who had heard about the inverted flag arrived to ask about it. Mrs. Alito looked upset, yelled that the flag was a “signal of distress,” then shouted about a dispute with neighbors, according to an article published on Saturday.

The conflict then seemed to quiet down. But on Feb. 15, the couple were pulling in trash bins when the Alitos, who seemed to be on a stroll, appeared. Mrs. Alito addressed the pair by name, used an expletive and called them “fascists,” the couple told The Times and said in texts at the time. Justice Alito remained silent, they added. The Alitos began to walk away.

That was when Emily Baden snapped, she said. She does not remember her precise words, but recalls something like this: How dare you behave this way. You’ve been harassing us, over signs. You represent the highest court in the land. Shame on you.

Ms. Baden said that she — not her partner, as Justice Alito recalled — used the lewd expression. “I will fully cop to that,” she said. A neighbor standing in the street, who asked not to be identified because of the friction on the block, said he heard her say the word too.

To document the incident, the Badens called the police shortly afterward — they did not mention the vulgar expression — and recorded the conversation.

“It’s very hard for us to come into a situation like this after it’s already settled,” the officer on the line said, explaining that the matter didn’t warrant an immediate response. “Next time that happens, you’re welcome to call us back out there, we’ll see if we can get there to see what’s going on ourselves.”

Ms. Baden and her husband protested outside Justice Alito’s home after the court issued the opinion he had written overturning Roe v. Wade.Credit…via Emily Baden

More than a year later, when Justice Alito wrote the majority opinion overturning the constitutional right to abortion, the block became the scene of clamorous protests targeting him and his wife. The younger couple had moved away, but during a visit home they joined in. (That is when they held up the signs Justice Alito may have been referring to, accusing him of being a fascist and an insurrectionist.)

So Barbara Baden was surprised when she received a Christmas card from the Alitos at the end of last year. She did not save it, but she and her daughter remember a handwritten addition that read, “May you have PEACE.”

Julie Tate contributed reporting.