Federal Judge Apologizes for Criticism of Justice Alito

In the world of judicial decorum, it seems flags can cause quite the flap. When a federal trial judge recently penned an op-ed critiquing Supreme Court Justice Samuel Alito for some politically charged flag displays, he found himself in hot water—leading to an ethics complaint and an apology from the judge himself.
Alito’s Flag Incidents
In January 2021—in the wake of the 2020 election and the Capitol riot, an upside-down American flag was seen at the Justice’s home. This symbol was adopted by Trump supporters contesting the 2020 election results and the "Stop the Steal" movement, so it was particularly contentious. Alito stated his wife placed the flag during a dispute with a neighbor over anti-Trump signs. Ethics experts have argued the display could compromise perceptions of judicial impartiality, especially as the Supreme Court considered cases related to the events of January 6 and Trump's actions.
Then, last summer, a similar incident happened with an "Appeal to Heaven" flag displayed outside of the justice's New Jersey vacation home. This has similarly been a symbol associated with the January 6 Capitol riot and a push for a Christian-focused government. The flag, historically from the Revolutionary War, has been re-popularized by right-wing Christian figures like Dutch Sheets, who support former President Trump and oppose same-sex marriage and abortion rights.
Legislators Chide Alito
Senators started expressing concern over the Supreme Court's perceived partisanship. Sen. Mazie Hirono and others argued that the court is "out of control," while Sen. Jeff Merkley noted growing frustration with its legitimacy. Sen. Tina Smith criticized the flag incidents as undermining judicial impartiality, while Sen. Brian Schatz expressed concern over promoting specific religious ideologies.
Some Republicans, including Sen. Lindsey Graham, acknowledged the poor judgment in flying an upside-down flag but were less concerned about the historical "Appeal to Heaven" flag. Senate Minority Leader Mitch McConnell defended Alito, urging Democrats to cease their criticisms of the court.
In any case, these events have since intensified calls for Supreme Court reform, such as expanding the number of justices or enforcing a binding ethics code. Senate Judiciary Committee Chair Dick Durbin has even insisted on Alito's recusal from cases involving former President Trump, citing a pattern of political signaling.
But it’s one thing for legislators to call out Justice Alito; is it different if the same types of criticisms are coming from a fellow federal judge?
One Opinionated Judge
This past May, U.S. District Judge Michael Ponsor published an op-ed in the New York Times criticizing Alito for the latest flag incident. Ponsor is a senior United States District Judge for the District of Massachusetts. Appointed by President Bill Clinton in 1994, he has served on the federal bench for over 25 years.
Ponsor has presided over several high-profile cases throughout his career. Judge Ponsor is also a novelist, having authored two legal thrillers. It seems that he is quite fond of writing that’s not limited to opinions from the bench. But his most recent composition has probably done him more harm than good.
In the op-ed, Judge Ponsor argued that such displays, regardless of their legality, are improper and erode confidence in judicial impartiality. He reflected on the ethical expectations of judges and their families, emphasizing that personal expressions should not compromise professional integrity.
Ponsor suggested that Alito and his wife should have discussed the implications of their actions and found alternative ways to express their grievances. He underscored that ethical behavior should be inherent in judges, beyond formal codes, to maintain the judiciary's integrity. He stated that "any judge with reasonable ethical instincts would have realized immediately that flying the flag then and in that way was improper. And dumb."
What the motivations were in writing the op-ed—whether they reflected genuine frustration and hoped to hold the justice accountable or were merely offhand and not anticipating being taken so seriously—the effect was probably more than Ponsor bargained for.
Ponsor’s Public Penance
The comments sparked an ethics complaint filed by the conservative legal group, the Article III Project. The complaint was reviewed by Chief Judge Albert Diaz of the 4th U.S. Circuit Court of Appeals, who concluded that Ponsor's essay violated judicial ethics by diminishing public confidence in the judiciary and commenting on pending cases. Diaz noted that the essay could be perceived as a call for Alito's recusal from January 6-related cases.
Recently, Ponsor was found in violation of the judicial code of ethics for the public criticism of Justice Samuel Alito. In response, Ponsor acknowledged his lapse, stating, "For these violations of the Code, unintentional at the time but clear in retrospect, I offer my unreserved apology and my commitment to scrupulously avoid any such transgression in the future." This apology was deemed sufficient to resolve the complaint.
Critics, including Josh Sorbe, spokesperson for Senate Judiciary Committee Chair Dick Durbin, pointed out a perceived hypocrisy. They noted that while Ponsor faced repercussions for his actions, Justice Alito did not face any official consequences for the flag controversy. Sorbe highlighted the lack of an enforceable code of conduct for Supreme Court justices, contrasting it with the binding code applicable to other federal judges.
The lesson seems to be a reminder of something we’ve always known, at least in theory: when you’re a judge, you can’t always let your freak flag fly.
Related Resources
- Supreme Court Roundup (FindLaw's Federal Courts)
- The Knight in Black: Justice Alito's Knighthood, Explained (FindLaw's Federal Courts)
- Explaining Alito's Leaked Draft Opinion Overturning Roe v. Wade (FindLaw's Federal Courts)