I confess that I am at many levels uncomfortable with this decision. A federal judge violated judicial ethics rules by publishing an essay in the New York Times criticizing conservative U.S. Supreme Court Justice Samuel Alito for allowing provocative flags including an upside-down American flag to fly outside his houses, according to an order made public on Tuesday.
Senior U.S. District Judge Michael Ponsor in Springfield, Massachusetts, wrote in his May 24, 2024, essay that any judge with reasonable ethical instincts would have realized that flying a flag then and in that way be “improper” and “dumb.” https://www.reuters.com/legal/government/judges-criticism-us-supreme-courts-alito-over-flags-is-deemed-improper-2024-12-17/
Dissent is valuable. Organizations that stifle dissent rarely are successful. Judges have asked the public to accept that we often order protection for speech that is distasteful. So is this an example of those who live in glass houses should not throw stones? And if the essay in the New York Times was inappropriate what about Justice Alito’s flag flying?
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I have great respect for Judge Diaz, who oversaw the ethics review. I also respect Judge Ponsor. He wrote a novel about a federal judge handling a death-penalty case after he had done so in a real case. But he carefully considered the ethical issues and made the fictional case quite different from his real case.
Here, federal judges are well-positioned to help the public understand ethics issues. I hope to read the ethics opinion in this case to better understand how the judicial-conduct rule was applied here.
Steve Leben
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