Officially Unethical To Suggest Sam Alito Is Unethical

(Photo by Alex Wong/Getty Images)

A federal judge has been found to have engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” for pointing out that Supreme Court justice Sir Samuel Alito the Aggrieved… engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.

This Kafka-inspired result forms the basis of an opinion issued last week rebuking District Judge Michael Ponsor pursuant to 28 U.S.C. § 351-364. When reports surfaced that Sam Alito flew insurrection-friendly flags, Judge Ponsor wrote a piece in the New York Times flagging such behavior as “improper… And dumb” for any reasonable federal judge to signal support for a political conspiracy theory. That Alito followed up on the revelations about his “Stop the Steal” flag by refusing to recuse himself from a case based on the fictional “Steal” deeply prejudiced the effective and expeditious administration of the business of the courts.

Because the Supreme Court famously takes the position that it is exempt from all judicial ethics rules, so by extension, they cannot improperly undermine faith in the courts… and anyone pointing out what they’ve done is the REAL culprit undermining confidence in the courts.

The greater crime remains pointing out that emperor wears no clothes. Which goes a long way toward explaining why America’s faith in the courts exists in the same company as the courts of Myanmar and Syria.

After Ponsor’s article, the Article III Project filed a third party ethics complaint against Ponsor. By way of context, the Article III Project is a right-wing advocacy group founded by Mike Davis who you might remember as the guy who thinks judicial nominees shouldn’t have to commit to upholding Brown v. Board and thinks it’s time for Americans to “arm up” against the “Black underclass.” Ponsor has actually spoken frankly about the damage justices on both sides have done to judicial credibility for their actions in violation of at least the mandate to avoid the appearance of impropriety and at worst breaches of the ethical rules that apply to the rest of the judiciary. But apparently the Article III Project wasn’t as incensed when Ponsor called out Sotomayor’s ethical problems.

Fourth Circuit Chief Judge Albert Diaz heard the matter and issued an opinion last week.

Although Judge Ponsor “is in a unique position to contribute to the law,” Canon 4 cmt., and “may . . . write on substantive legal issues,” Advisory Op. No. 93, the essay expressed personal opinions on controversial public issues and criticized the ethics of a sitting Supreme Court justice. Such comments diminish the public confidence in the integrity and independence of the federal judiciary in violation of Canons 1 and 2A. See Canon 1 cmt. (“Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges.”).

A more reasonable system might conclude that the judge openly flying the sigil of a coup actually did all the damage to the “confidence in the integrity and independence of the federal judiciary,” but, again, the Supreme Court doesn’t abide by any rules. But Diaz couldn’t opine on the truth of the matter, he could only conclude that fellow judges can’t publicly call out ethical lapses by Supreme Court justices. No matter how egregious.

Not for nothing, but this complaint got resolved… really fast.

Judge Kindred’s behavior was particularly horrifying. Judge Roger Benitez terrorized a 13-year-old girl and the courts took 14 months to decide that this was wrong. Perhaps Judge Diaz just takes these matters more seriously than other judges, but it sends the distinct impression that rape and abusing a child aren’t nearly as much of a priority as vindicating a Supreme Court justice’s right to avoid criticism.

As penalty for his transgression, Judge Ponsor had to write an apology letter to Judge Diaz. As he put it in his conclusion:

I am proud to participate in a judicial system that gives members of the public an avenue to identify potential violations of the Code and that gives me an opportunity to recognize any misstep, apologize, and amend. Please accept my thanks for your very helpful guidance.

I don’t think Judge Ponsor meant this, but this passage highlights the big problem here. There actually is a Code and an avenue to identify violations of that Code available when it comes to lower court judges. But for the Supreme Court there is no Code and no avenue. There is no recognition of any misstep, apology, and amendment.

And if someone’s worried about the plummeting faith in America’s courts… the problem is a lot higher up than a District Judge in Massachusetts.

(Opinion on the next page…)

Earlier: Federal Judge Absolutely NAILS Supreme Court’s Ethics Dumpster Fire
Federal Judge Rebukes Alito’s Flag Antics As ‘Improper’ And ‘Dumb’
Plummeting Faith In American Courts Among 10 Largest Declines Worldwide

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.