Justice Samuel Alito’s Flag Flying ‘Foolish’ and ‘Dumb’—Federal Judge

U.S. District Judge Michael Ponsor criticized conservative Supreme Court Justice Samuel Alito in an opinion essay on Friday, calling him “foolish” and describing his action of displaying the American flag upside-down as “dumb.”

In a New York Times guest essay titled, “A Federal Judge Wonders: How Could Alito Have Been So Foolish?” Ponsor, a senior judge on the U.S. District Court for the District of Massachusetts, 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.”

Last week, the Times published a photograph of an inverted flag—a symbol used by supporters of Donald Trump to contest the 2020 election results—displayed outside Justice Alito’s house just days before President Joe Biden’s inauguration in 2021.

Despite a lack of evidence, Trump and his allies have claimed that his 2020 loss to Biden was due to widespread voter fraud. The photograph of the inverted flag outside Alito’s home was taken less than two weeks after a group of Trump supporters stormed the U.S. Capitol building on January 6, 2021.

Justice Alito told the Times that he had “no involvement whatsoever in the flying of the flag,” saying his wife “briefly” put up the inverted flag “in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Earlier this week, an “Appeal to Heaven” flag was seen at Alito’s summer home in 2023. The symbol is rooted in Revolutionary War-era naval vessels under President George Washington, then commander-in-chief of the Continental Army. But, as the Times reported the flag has been used by conservatives in recent years, including by some Trump supporters during the January 6 riot.

Ponsor, an appointee of former President Bill Clinton, wrote in his essay that “courts work because people trust judges. Taking sides in this way erodes that trust.”

Newsweek has reached out to Ponsor’s courtroom clerk for comment via email on Saturday. Newsweek has also submitted a contact form to the Supreme Court’s public information office on Saturday.

In recent years, Americans have been more skeptical of the Court, largely due to several scandals, including accusations of financial improprieties, undisclosed relationships and conflicts of interest, with the public eye mainly on Justice Clarence Thomas, Justice Neil Gorsuch and Justice Alito.

“The federal judiciary really only has its integrity…If people don’t believe in the ability of our judiciary to rule without fear or favor, then what happens is they lose faith in that institution and the judges’ decisions, or in this case the justices’ decisions, cease to have the kind of impact that you want them to,” retired federal Judge John E. Jones III previously told Newsweek.

Jones added that recently “the support and respect among the public has cratered” toward the Supreme Court. A September 2023 Gallup poll shows that approval of the Court is approaching a historic low, with only 41 percent approving of its performance.

In his Friday guest essay, Ponsor specifically did not address the legality of raising the flags, but instead focused on the ethically “improper” nature of the decision. He responded to Alito’s claim that the inverted flag was his wife’s doing, saying that he sympathizes with the challenges of being a judge’s spouse.

Ponsor then provided a hypothetical scenario regarding a death penalty case to serve as a parallel. In the hypothetical situation, he wrote, “If my wife had felt strongly that she needed to espouse her viewpoint [about capital punishment] publicly, I would have had to recuse myself from presiding over the case, based on the appearance of partiality.”

Democratic leaders have called for Justice Alito to recuse himself from Trump’s presidential immunity case, which the Court is expected to rule on soon, claiming that Alito’s flag controversy calls into question his ability to rule impartially on the case.

The case, brought by Department of Justice special counsel Jack Smith, will determine whether or not Trump is protected by presidential immunity from charges in his federal election subversion case. Trump has maintained his innocence in the case and says it is politically motivated.

On Thursday, Democratic Senators Sheldon Whitehouse of Rhode Island and Dick Durbin of Illinois wrote a letter to Chief Justice John Roberts urging him to “immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6th attack on the Capitol.”

They also called “for the Supreme Court to adopt an enforceable code of conduct for Supreme Court justices,” and requested to meet with the Chief Justice.