Adedokun Waliyu 
A federal judge on Friday criticized conservative U.S. Supreme Court Justice Samuel Alito for allowing provocative flags including an upside-down American flag to fly outside his houses, saying doing so was “dumb” and “improper.”
In a rare move by a sitting lower-court judge, Senior U.S. District Judge Michael Ponsor of Massachusetts publicly criticized the Supreme Court justice’s approach to ethics in an opinion piece published in the New York Times.
The op-ed followed a pair of reports in the newspaper about Alito’s Virginia residence and New Jersey vacation home having displayed flags like those carried by some of Republican former President Donald Trump’s supporters during the Jan. 6, 2021, U.S. Capitol riot.
Those flags, including an upside-down American flag that was flown outside Alito’s Virginia home in the aftermath of the riot, have prompted calls by Democratic lawmakers 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.”
The op-ed’s publication came as Democrats continued to ramp up pressure on not only Alito to recuse himself from hearing cases concerning the 2020 election but Chief U.S. Supreme Court Justice John Roberts to take steps to ensure Alito does so.
U.S. Senator Dick Durbin of Illinois, the chair of the Senate Judiciary Committee, and U.S. Senator Sheldon Whitehouse of Rhode Island, a fellow Democrat, on Friday released a letter, opens new tab to Roberts to ensure Alito’s recusal and requesting a meeting to discuss steps “to address the Supreme Court’s ethics crisis.”
Alito and Roberts, both members of the court’s 6-3 conservative majority, did not respond to requests for comment. Alito has indicated 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, in his op-ed gave no opinion as to whether the flag display was actually unlawful or would have violated an ethics code that governs federal judges aside from Supreme Court justices.
But Ponsor, who is based in Springfield, Massachusetts, said regardless of its legality, the upside-down flag display was improper.
He said the same was true of a flag bearing the phrase “Appeal to Heaven” that the New York Times reported flew outside Alito’s vacation home on Long Beach Island, New Jersey, in July and September of 2023.
That type of flag has come to symbolize 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 said flying the flags could erode trust in the judiciary, as they were “viewed by a great many people as a banner of allegiance on 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 said Alito should recuse himself from a case involving Trump’s claim of presidential immunity from prosecution on federal criminal charges relating 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.
