Federal Judge Violates Judicial Code While Lecturing Justice Alito on Ethics in New York Times Essay, Forced to Issue Apology for Misconduct

Senior U.S. District Judge Michael Ponsor of Massachusetts openly criticized Justice Samuel Alito’s ethics in a New York Times guest essay, violating the sacred trust of impartiality expected from the judiciary.

The conservative advocacy group, the Article III Project, filed a formal complaint against Ponsor, leading to a misconduct finding and a public apology from the senior judge.

The complaint, filed in May 2024, stemmed from an op-ed authored by Judge Ponsor and published in The New York Times.

The article discusses the controversy surrounding Supreme Court Justice Samuel Alito’s display of an upside-down American flag and an “Appeal to Heaven” flag at his properties, which some media outlets tied to Trump supporters during the events of January 6, 2021. Ponsor declared the flags as symbols of partisanship and questioned Alito’s ethical judgment.

Despite lacking direct evidence of ethical violations or pending cases involving the flags, Ponsor’s essay implied that Alito’s actions warranted recusal from cases related to January 6, casting doubt on the Supreme Court justice’s impartiality.

“To me, the flag issue is much simpler. The fact is 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,” Ponsor wrote in the essay.

“The same goes for the flying of an “Appeal to Heaven” flag at Justice Alito’s vacation house along the New Jersey shore. 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.”

Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit issued a scathing rebuke of Ponsor’s actions.

“The essay expressed personal opinions on controversial public issues and criticized the ethics of a sitting Supreme Court justice. Such comments diminish the public confidence in the integrity and independence of the federal judiciary in violation of Canons 1 and 2A.” said Diaz in the filed reply.

“Viewed in the timeframe during which the essay was published, including the substantial press coverage detailing the calls for Justice Alito’s recusals from the then-pending January 6 cases, it would be reasonable for a member of the public to perceive the essay as a commentary on partisan issues and as a call for Justice Alito’s recusal,” Diaz added.

Chief Judge Diaz also detailed the process of addressing the complaint and Ponsor’s cooperation.

“I communicated with Judge Ponsor regarding this matter to obtain his response to the complaint and to provide him with an objective view of his essay and its ethical implications,” Judge Diaz said.

“Judge Ponsor was at all times respectful of the judicial complaint process, responsive to the concerns raised by his essay, and reflective in drafting the attached letter in which he publicly acknowledges and apologizes for his violations of the Code of Conduct. I am satisfied that Judge Ponsor’s public letter of apology constitutes voluntary corrective action sufficient to allow for the conclusion of the complaint under 28 U.S.C. § 352(b)(2) and Judicial-Conduct Rule 11(d).”

Read Judge Michael Ponsor’s apology:

“Thank you for your recent letter pointing out how my New York Times essay of May 24, 2024, violated the boundaries of our Code of Conduct.

With the benefit of an objective perspective, I realize now that my 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, in violation of Canon 2A of the Code. Beyond this, I also now see that the piece permitted the inference that I was commenting on matters that were pending before the Court in violation of Canon 3A(6). I particularly regret the fact that my essay might have been interpreted as a call for Justice Alito’s recusal from specific cases then under consideration. The fact that I did not have any particular case in mind when I drafted the piece does not reduce the gravity of my lapse.

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.

In more than forty years as a Magistrate Judge and District Judge, I have striven to avoid any even arguable violation of the Code. In the future, if I am contemplating any public, nonjudicial writing, I will take advice from our Committee representative before publication. I do not believe this is required by the Code, and I hope that this commitment will be seen as proof of my sincere, ongoing intent to stay well within proper boundaries.

I am proud to participate in a judicial system that gives members of the public an avenue to identify potential violations of the Code and that gives me an opportunity to recognize any misstep, apologize, and amend. Please accept my thanks for your very helpful guidance.”

In an extraordinary development, a sitting federal judge who published an essay in the NYTIMES attacking (unfairly) Justice Alito’s ethics is found to have violated the federal judicial code of conduct in doing so. The judge, The Honorable Richard A. Ponsor, resolved the issue by… pic.twitter.com/osAU1crEwR

— Tom Fitton (@TomFitton) December 18, 2024

“The courts and Judge Ponsor took this seriously. I accept his apology letter at face value,” Mike Davis, Founder and President of the Article III Project, told The Wall Street Journal.

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