A federal judge has criticized Justice Samuel A. Alito Jr., saying it was “improper” and “dumb” for the Supreme Court jurist to fly an upside-down American flag outside his home after Jan. 6, 2021.
U.S. District Judge Michael Ponsor, a Clinton appointee, wrote an op-ed that was published Friday in The New York Times, saying that flying the inverted flag ran afoul of judicial ethics.
“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. And dumb,” Judge Ponsor wrote.
He was appointed to the federal court for the District of Massachusetts in 1993. Comments critical of a Supreme Court justice from a sitting federal judge are rare.
Judge Ponsor’s statements come after The Times reported that Justice Alito had flown two flags outside his homes — one in 2021 at his residence in Alexandria, Virginia, and another in 2023 at his New Jersey beach house — that were symbols carried by Jan. 6, 2021, rioters at the U.S. Capitol.
The Times reported last week that Justice Alito flew an “Appeal to Heaven” flag at his Long Beach Island, New Jersey, vacation home in 2023. The Times called the flag, which dates from the American Revolution, a symbol for “a more Christian-minded government” and said it was carried on Jan. 6 at the riot.
It was the second article by the same paper in just under a week about Justice Alito flying flags at his residences. The outlet previously reported that Justice Alito flew an upside-down U.S. flag at his Alexandria, Virginia, home in the wake of the Jan. 6 riot.
Democratic lawmakers have called it a public display of political activity, which would run afoul of judicial ethics. One House Democrat introduced a censure resolution that demands that the justice recuse from any case related to the 2020 election.
It was the latest call for recusal after Senate Majority Whip Richard J. Durbin of Illinois, the top Democrat on the Senate Judiciary Committee, said the justice must recuse himself from former President Donald Trump’s case for absolute immunity over his efforts to reverse the 2020 election results.
Mr. Durbin reiterated those calls for recusal after revelations that the “Appeal to Heaven” flag was also flown.
That flag, also known as the Pine Tree Flag from the only element besides the phrase on the flag’s white background, was used during the American Revolution, originally by a squadron of six frigates commissioned in 1775 by George Washington.
The phrase “Appeal to Heaven” dates from 17th-century English political philosopher John Locke, who used it to characterize revolution as what an oppressed people have when there is no recourse on Earth. Locke was one of the most cited philosophers in the Colonial period and among America’s founders.
The flag flaps surrounding Justice Alito first became public when The Times published a Jan. 17, 2021, photograph of the upside-down American flag at his house. The upside-down flag is a symbol of Mr. Trump’s “Stop the Steal” movement in 2020, according to the newspaper.
Justice Alito told the newspaper he wasn’t responsible for the flag.
“I had no involvement whatsoever in the flying of the flag,” he said. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
He did not comment to The Times about the “Appeal to Heaven” flag.
Mr. Durbin and fellow Senate Democrats have requested a meeting with Chief Justice John G. Roberts Jr. amid the flag controversy.
The calls for recusal come as the high court is weighing two major disputes this term over whether Mr. Trump is immune from charges stemming from his contest of the 2020 election results and another dispute over an obstruction charge facing hundreds of Jan. 6 defendants, including Mr. Trump.
Those opinions are expected to come by the end of June.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.