Supreme Court Justice Thurgood Marshall famously said: “Where you see wrong or inequality or injustice, speak out, because this is your country. This is your democracy. Make it. Protect it. Pass it on.”
U.S. District Judge Michael Ponsor did just that when he published an op-ed criticizing a current Supreme Court justice for his behavior. Ponsor took Samuel Alito to task for the fact that flags associated with the MAGA movement, and similar to those carried by rioters involved in the insurrection at the Capitol on Jan. 6, 2021, were flown at his Virginia and New Jersey homes. And, after being the subject of a complaint, has apologized for doing so.
An upside-down U.S. flag was flown outside Alito’s Alexandria, Va., home for some time between Jan. 6, 2021, and the inauguration of President Joe Biden later that month.
An upside-down U.S. flag, often used to signal protest, as The New York Times originally reported, was flown outside Alito’s home in Alexandria, Virginia, for some time between Jan. 6, 2021, and the inauguration of President Joe Biden later that month. The following year, at Alito’s vacation home in New Jersey, a flag linked to conservative Christians bearing the motto “Appeal to Heaven” was flown. That flag and inverted U.S. flags were visible during the attack on the U.S. Capitol.Ponsor, writing for the New York Times on May 24, argued that “regardless of its legality, displaying the flag in that way, at that time, shouldn’t have happened. 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.”
Alito sent letters to members of Congress dated May 29, in which he reiterated that it was his wife’s decision, not his, to fly those flags. He said in those letters that he was opting not to recuse himself from cases involving participants in the events of Jan. 6, 2021.
All federal judges, except the nine on the Supreme Court, are subject to a binding code of conduct. The basic idea is that because we give judges enormous power in our government, because they make hugely consequential decisions on everything from reproductive choice to freedom of speech, and because they have their jobs for life, we should expect something in return: that they act like impartial jurists.But Ponsor himself became part of the problem he complained about — the difficulty the public has trusting the judiciary — when he publicly criticized Alito.
When any judge engages in or tolerates behavior that calls into question their impartiality — whether it the flags flown at Alito’s houses or Ponsor and his essay pointing out the problems with the display of those flags — it threatens our confidence in the judiciary. In his essay criticizing Alito, Ponsor himself wrote that “Courts work because people trust judges.” After a complaint was filed against him over the op-ed and an investigation was conducted, Ponsor acknowledged that he had violated the code of conduct and wrote a public letter of apology.
Alito made no such admission that he did anything wrong or caused people to question the impartiality of the judiciary, but again, there is no binding code of conduct that, as a Supreme Court justice, he could violate.
Two people can be wrong at the same time, and their wrongs can be of different degrees. Ponsor called out behavior that he and many others believe is genuinely problematic. Ponsor is uniquely situated to explain why he, as a sitting federal judge, believes that another federal judge, Alito, failed to act as “any judge with reasonable ethical instincts” would have. And there are legitimate grounds for Ponsor’s criticisms. But the very reason Ponsor is especially well positioned to speak on this issue, is the same reason he should not have spoken.
Ponsor was officially chastised for his actions, while Alito will face no official repercussions for the flags that flew at his properties. Again, that’s because only one of the federal judges in question is subject to a binding code of conduct. Only one of the federal judges in question is subject to a binding code of conduct. We can and should argue about whether this is good or wise, but that doesn’t change the facts. In an ideal world, judges and justices would conduct themselves in a way that would not necessitate such a code. That world, however, seems to only be inhabited by unicorns and fairies. The continued viability of any judicial branch is largely a trust exercise. If we cease to believe judges’ decisions are legitimate, and we begin to ignore those decisions, then judges lose their power. That is a constitutional crisis. Ponsor’s ethical lapse does not excuse Alito’s behavior, and neither does Alito’s behavior justify Ponsor writing that op-ed. They were both wrong, but their transgressions are not the same.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
