Federal judge broke ethics rules by criticizing Justice Alito over flag flying, report finds

Chief Judge Albert Diaz said U.S. District Court Judge Michael Ponsor violated judicial ethics rules when he wrote an essay for The New York Times this year critical of Supreme Court Justice Samuel A. Alito Jr. over his flying of flags outside his homes.

Judge Diaz, an Obama appointee who sits on the 4th U.S. Circuit Court of Appeals, said the essay expressed Judge Ponsor’s personal opinions on a volatile subject.

“Such comments diminish the public condense in the integrity and independence of the federal judiciary,” wrote Judge Diaz in a Dec. 10 order reviewing the complaint.

He said Judicial Canons 1 and 2, which say a judge “should uphold the integrity and independence of the judiciary” and “should … act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” were violated.

In response to the findings, Judge Ponsor, a Clinton appointee, issued a public written apology. He received his commission to the District of Massachusetts in 1994.

Judge Ponsor said he recognizes now that his essay could have undermined confidence in the judiciary.

“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,” he wrote.

The revelation comes when public confidence in the courts is at an all-time low, according to a Gallup survey published this week.

The complaint against Judge Ponsor was filed in May by a judicial advocacy group, the Article III Project.

It alleged Judge Ponsor participated in prejudicial political speech when publishing the essay.

In the op-ed, Judge Ponsor suggested it was “dumb” for Justice Alito to have the upside-down American flag outside his Virginia home in the weeks after the U.S. Capitol riots following the 2020 election.

“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,” Judge Ponsor wrote.

Comments critical of a Supreme Court justice from a sitting federal judge are rare.

Justice Alito flew two flags outside his homes — one in 2021 at his residence in Alexandria, Virginia, and another in 2023 at his New Jersey beach house — that were symbols carried by the Jan. 6 protesters. The first reported flag was an upside down American flag and the second included “An Appeal to Heaven.”

Critics said Justice Alito should recuse himself from cases related to the Jan. 6, 2021, riot and challenges to the election results. Judge Ponsor’s essay was published as the high court had cases before it weighed President-elect Donald Trump’s immunity in his federal election fraud case and a challenge related to a federal obstruction charge used against hundreds of Jan. 6 defendants, including Mr. Trump.

Justice Alito, meanwhile, rejected calls from his critics to recuse, saying his wife flew the flags.

“My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years,” he said.

Mike Davis, president of the Article III Project, said he was pleased with Judge Ponsor’s apology.

“The courts and Judge Ponsor took this seriously. I accept his apology letter at face value,” Mr. Davis said.