On Friday, a federal judge criticized conservative U.S. Supreme Court Justice Samuel Alito for allowing provocative flags, including an upside-down American flag, to fly outside his homes. Senior U.S. District Judge Michael Ponsor of Massachusetts, in a rare move by a sitting lower-court judge, publicly condemned the Supreme Court justice’s approach to ethics in an opinion piece published in the New York Times.
The op-ed followed two reports in the newspaper about flags displayed at Alito’s Virginia residence and New Jersey vacation home. These flags, similar to those carried by some of Republican former President Donald Trump’s supporters during the Jan. 6, 2021, U.S. Capitol riot, included an upside-down American flag flown outside Alito’s Virginia home after the riot. Democratic lawmakers have since called for Alito to recuse himself from two cases concerning Trump and the attack.
“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,” Ponsor wrote. “And dumb.”
Alito, a member of the court’s 6-3 conservative majority, did not respond to a request for comment. He indicated that his wife raised the upside-down flag outside their house in Alexandria, Virginia, during a dispute with a neighbor who displayed an anti-Trump sign.
Ponsor, an appointee of Democratic former President Bill Clinton, stated in his op-ed that he did not express an opinion on whether the flag display was unlawful or violated an ethics code governing federal judges aside from Supreme Court justices. However, Ponsor emphasized that the upside-down flag display was improper regardless of its legality.
He also criticized a flag bearing the phrase “Appeal to Heaven,” which the New York Times reported flew outside Alito’s vacation home on Long Beach Island, New Jersey, in July and September of 2023. This type of flag symbolizes hopes by some conservative activists for a more Christian-centered U.S. government and was carried by some Trump supporters during the Jan. 6 riot.
Ponsor argued that flying these flags could erode trust in the judiciary, as many people view them as symbols of allegiance to partisan issues that are or could be before the court. “Flying those flags was tantamount to sticking a ‘Stop the Steal’ bumper sticker on your car,” Ponsor said. “You just don’t do it.”
Democratic lawmakers, citing the flag displays, have argued that Alito should recuse himself from a case involving Trump’s claim of presidential immunity from prosecution on federal criminal charges related to his efforts to overturn the 2020 election results. They also urged Alito’s recusal in a challenge by a Pennsylvania man charged with criminal obstruction related to the Jan. 6 attack. Trump faces the same charge in the election-related criminal case brought against him by U.S. Special Counsel Jack Smith.
