Placing Limits on Judicial Speech: The Disciplinary Case Against Judge Ponsor

Federal judges always have to be careful about what they say.  In court, every word they utter in an opinion or on the record will be parsed by the parties, who will not hesitate to cite it as binding “law of the case,” and by legal researchers looking for useful citations.  But even out of court, whatever federal judges say in a public setting will be scrutinized for signs of disqualifying bias in current or future cases.  The recent Order of Fourth Circuit Chief Judge Albert Diaz, finding that federal District Court judge Michael Ponsor committed ethical misconduct in writing a New York Times opinion piece about Justice Alito, shows just how careful federal judges have to be.

            Here’s what happened.  On May 24, 2024,  Judge Ponsor, who sits in the District of Massachusetts, published an essay in the New York Times entitled “A Federal Judge Wonders:  How Could Alito Have Been So Foolish?” The essay addressed the flying of an upside-down American flag and an Appeal to Heaven flag outside homes Justice Alito owns.  Judge Ponsor opined that “any judge with reasonable ethical instincts” would have recognized that these displays could be perceived as “a banner of allegiance on partisan issues that are or could be before the Court.”  In response to Judge Alito’s public claims that his wife – not he – was responsible for flying the flags, Judge Ponsor said it did not matter.  If Justice Alito’s wife had publicly expressed her views on a fundamental issue in one of the Justice’s cases, Ponsor argued, this would create an appearance of impropriety requiring Justice Alito’s recusal – regardless of whether the Justice shared those views.

            Five days after the article appeared, The Article III Project (“A3P”), a conservative Supreme Court watchdog group, submitted a formal complaint to the Judicial Council of the First Circuit contending that the Times piece constituted a “pre-planned extrajudicial political statement” timed to coincide with two “high-profile, politically charged” Supreme Court cases, including the one relating to President Trump’s claim of immunity.  Justice Alito, the Complaint alleged, acted appropriately:  neither of the flags flown over the Alito homes had any real political content (although A3P had to admit that “some supporters of the ‘Stop the Steal’ movement used the flag[s] as a symbol in social media posts”), but even if they did, Justice Alito had no responsibility for his wife’s actions.  Instead, according to the Complaint, it was Judge Ponsor who acted unethically.  His opinion piece in the Times violated Canons 2A and 2B of the Code of Conduct for United States Judges by, respectively, “acting in a manner [likely to damage] confidence in the integrity and impartiality of the judiciary” and “lending the prestige of the judicial office to advance the private interests of the judge or others. . . .” 

            The complaint was referred to Chief Justice Roberts, who in turn referred it, under Rule 26 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, to the Fourth Circuit.  The complaint received a warm reception from Fourth Circuit Chief Judge Albert Diaz, a President Obama appointee on a very conservative court. Though Judge Diaz recognized that judges are in “’a unique position to contribute to the law’” (citing Canon 4 of the Code of Conduct for Judges, Cmt.) and “‘may write on substantive issues’” (citing Advisory Op. No. 93), he nevertheless concluded that the New York Times piece “expressed personal opinions on controversial public issues and criticized the ethics of a sitting Supreme Court justice.”  The fact that Judge Ponsor mentioned no specific case did not save him:  “viewed in the timeframe during which the essay was published, including the press coverage detailing the calls for Justice Alito’s recusals from the then-pending January 6 cases,” Judge Diaz found “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.”

            Judge Diaz did not impose any penalty on Judge Ponsor.  Rather, before writing his opinion, he “communicated” with Judge Ponsor “to obtain his response to the complaint and provide him with an objective view of his essay and its ethical implications.”  This elicited a lengthy letter of apology from Judge Ponsor.  Judge Diaz found that this letter, which he attached to his Order, “constitutes voluntary corrective action sufficient to allow for the conclusion of the complaint” under applicable statutes.

            We get that it is not a good look for members of the federal judiciary to publish essays slagging each other’s ethics, especially when the judge being slagged happens to be on the Supreme Court.  We also get that the issue Judge Ponsor decided to write about had significant political overtones, wading into an area which any federal judge publicly addresses at their peril.

            Still, we can’t help feeling uneasy about what happened here.  Judge Diaz went about obtaining a written apology from Judge Ponsor in what was a non-public proceeding as well as his agreement to publish that apology accompanied by a public criticism of his actions.  Judge Ponsor was not really in a position to object.  Given the political context here, this public shaming for expressing a viewpoint that some may find disagreeable has as much the odor of McCarthyism as it does of a supposedly apolitical judicial discipline system.      

            But even worse is the complete failure to acknowledge the irony — perhaps hypocrisy is a better word — of the disciplinary system’s actions.  Judge Diaz calls out Judge Ponsor for violating various federal Rules of Judicial Conduct, but neglects to mention that Justice Alito, as a member of the Supreme Court, is not subject to these or any other binding Rules.   Moreover, Judge Ponsor was prohibited from publicly commenting on Justice Alito’s conduct, but Justice Alito was allowed to speak to the Wall Street Journal, using an interviewer of his own choosing, in an effort to defend that conduct.  What’s good for the goose is obviously not good for the gander.

            There, of course, is the rub.  Absent an enforceable Code of Judicial Conduct that covers the Supreme Court, the Justices will continue to get away with conduct which would result in discipline to any other federal judge.  This is why NYCLA continues to call on Congress to use its authority to bring the Supreme Court under such a Code.  Embarrassing episodes like the one involving Judge Ponsor need not happen again. 

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.

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