Supreme Court Justice Thurgood Marshall famously said, “If you see wrong, inequality or injustice, speak out, because this is your country. This is your democracy. Make it. Protect it. Pass it on.”
U.S. District Judge Michael Ponsor did just that when he published an op-ed criticizing a current Supreme Court justice for his conduct. Ponsor took Samuel Alito to task for bringing flags associated with the MAGA movement, and similar to those carried by rioters involved in the January 6, 2021, Capitol insurrection, to his homes in Virginia and New Jersey fluttered. And after being the subject of a complaint, he apologized for it.
An upside-down American flag, often used to indicate protest, as The New York Times originally reported, hung outside Alito’s home in Alexandria, Virginia, for some time between January 6, 2021, and President Joe Biden’s inauguration later that day. month. The following year, a flag linked to conservative Christians was raised at Alito’s vacation home in New Jersey with the motto “Appeal to Heaven.” That flag and inverted American flags were visible during the attack on the U.S. Capitol.
Ponsor, writing for the New York Times on May 24, argued that “regardless of its legality, displaying the flag in that manner should not have happened at that time. To put it bluntly, any judge with reasonable ethical instincts would have immediately realized that flying the flag was inappropriate at the time and in that manner. And stupid.”
Alito sent letters to members of Congress on May 29, reiterating that it was his wife’s decision, not his, to raise those flags. He said in those letters that he chose not to withdraw from cases involving participants in the events of January 6, 2021.
All federal judges, except the nine on the Supreme Courtare subject to a binding code of conduct. The basic idea is that because we give judges in our government enormous power, because they make decisions with enormous consequences on everything from reproductive choice to freedom of speech, and because they have their jobs for life, we should expect something in return: that they take action. such as impartial lawyers.
But Ponsor himself became part of the problem he complained about — the public’s difficulty in trusting the judiciary — when he publicly criticized Alito.
When a judge engages in or tolerates behavior that calls into question his impartiality — whether it’s the flags flying at Alito’s homes or Ponsor and his essay pointing out the problems with displaying those flags — it threatens our confidence in the judiciary power. In his essay criticizing Alito, Ponsor himself wrote: “Courts work because people trust judges.” After a complaint was filed against him over the op-ed and an investigation was initiated, Ponsor acknowledged that he had violated the code of conduct and wrote a public apology letter.
Alito has not admitted that he did anything wrong or caused people to question the impartiality of the judiciary. But again: there is no binding code of conduct that he can impose as a Supreme Court judge could violate.
Two people can be wrong at the same time, and their mistakes can be of different degrees. Ponsor mentioned behavior that he and many others believe is really problematic. Ponsor is in a unique position to explain why he, as a sitting federal judge, believes that another federal judge, Alito, failed to act as “any judge with reasonable ethical instincts” would have done. And there are legitimate reasons for Ponsor’s criticism. But the reason Ponsor is particularly well positioned to speak on this issue is the same reason he should not have spoken.
Ponsor was officially punished for his actions, while Alito will face no official consequences for the flags flying at his property. Again, that’s because only one of the federal judges in question is subject to a binding code of conduct.
We can and should debate whether this is good or wise, but that does not change the facts. In an ideal world, judges and justices would behave in a way that would not necessitate such a code. However, that world only seems to be inhabited by unicorns and fairies.
The continued viability of any judiciary is largely a matter of trust. When we stop believing that judges’ decisions are legitimate, and we begin to ignore those decisions, judges lose their power. That is a constitutional crisis.
Ponsor’s ethical lapse does not excuse Alito’s behavior, nor does Alito’s behavior justify Ponsor writing that op-ed. They were both wrong, but their transgressions are not the same.
This article was originally published on MSNBC.com
