Judge Apologizes for Criticizing Alito’s Ethics Over Flags

A federal judge committed judicial misconduct in criticizing Justice Samuel Alito’s flying of flags outside his home that were also carried by Donald Trump supporters during the Jan. 6, 2021 riots at the Capitol, according to a recent order.

Senior US District Judge Michael Ponsor of Massachusetts issued an apology after US Court of Appeals for the Fourth Circuit Chief Judge Albert Diaz found that the senior judge’s criticism, published in the New York Times, hurt public confidence in the courts as it took issue with Alito’s ethics.

The Article III Project, a conservative legal group that filed the complaint against Ponsor, shared a copy of the Dec. 10 order. The Wall Street Journal first reported on the misconduct finding.

Diaz wrote that while judges are permitted to write about legal issues, Ponsor’s essay “expressed personal opinions on controversial public issues and criticized the ethics of a sitting Supreme Court justice.”

The chief judge also said that while Ponsor didn’t mention any specific pending case, “it would be reasonable for a member of the public to perceive the essay as a commentary on partisan issues and as a call of Justice Alito’s recusal,” due to media coverage of calls for the justice to step back from Jan. 6-related litigation.

Diaz said that a public letter of apology from Ponsor “constitutes voluntary corrective action” and resolved the complaint.

In that Nov. 20 apology letter, Ponsor wrote that he now realizes that his criticism “of the ethical judgment of a Supreme Court Justice might have had the effect of undermining the public’s confidence in the integrity of the judicial system.”

“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,” Ponsor wrote. He didn’t immediately return a request for comment.

While Ponsor sits within the First Circuit, misconduct complaints can be referred to other circuits for further review.

Alito faced blowback after the New York Times reported that an upside down American flag was flown outside his home in the days after the Jan. 6, 2021 riots at the US Capitol by Trump supporters seeking to block the certification of President Joe Biden’s 2020 election win. The Times reported that Alito’s wife flew the upside-down flag as part of a dispute with a neighbor, and that an “Appeal to Heaven” flag — which was also carried by some Trump supporters on Jan. 6 — was seen flying outside the Alito’s New Jersey vacation home in July and September of 2023.

Alito said he wouldn’t recuse from cases involving Trump and Jan. 6, after he faced calls to do so in light of the Times’ coverage on the flags.

Ponsor had written in the guest essay, published in May, that while he wouldn’t say whether it violated ethics rules for lower court federal judges like himself, it was wrong for Alito to have done so.

“The fact is that, regardless of its legality, displaying the flag in that way, at that time, shouldn’t have happened,” Ponsor wrote. “To put it bluntly, any judge with reasonable ethical instincts would have realized immediately that flying the flag then and in that way was improper. And dumb.”

The judge said he felt the same about the “Appeal to Heaven” flag. The Times reported that flag was also seen in the crowds of Trump supporters on Jan. 6.

“Like the upside-down flag, this flag is viewed by a great many people as a banner of allegiance on partisan issues that are or could be before the court. Courts work because people trust judges. Taking sides in this way erodes that trust,” Ponsor wrote.

The justices aren’t subject to the same ethics code as other federal judges. Members of the high court approved a new ethics code last year, but it doesn’t include an enforcement mechanism. Justices Elena Kagan and Ketanji Brown Jackson have since backed the justices being subject to a binding code of conduct.