Samuel Alito seems immune to consequences—but his critics aren’t
The hypocrisy of our highest court is on full display—again.
In May 2024, everyone learned Supreme Court Justice Samuel Alito and his wife Martha-Ann were devotees of the science of vexillology. One of the flags at the Alito residence was the upside-down U.S. flag, well-known as a symbol of Donald Trump’s wholly illegal “Stop the Steal” movement. But the one the couple flew at their beach house—an “Appeal to Heaven” flag featuring a pine tree—is more of a deep cut. It’s a relic of the Revolutionary War that had disappeared from American consciousness until it became a symbol of—surprise!—the “Stop the Steal” movement.
The flag news broke only a few weeks after the justices heard oral arguments in Trump’s immunity case. Despite calls that he recuse himself from that case, Alito told everyone to pound sand.
According to Alito, the people calling on him to recuse were the real ones playing politics. He insisted that “a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude” he was not required to recuse.
Predictably, Alito soon joined his fellow conservative justices in gifting Trump broad immunity from criminal prosecution, arguably one of the major events that brought us President Trump 2.0.
But while the flag debate was raging, a sitting federal district court judge, Michael Ponsor, wrote an incredibly low-key opinion piece for The New York Times about it. He took no position on whether the Alitos’ flagfest was unlawful, but asserted that “as far as the public’s perception of the court’s integrity, it certainly was not helpful.”
Seven months later, Judge Ponsor is paying for those words. The chief judge for the Fourth Circuit Court of Appeals, Albert Diaz, issued an order on Dec. 10 finding that Ponsor’s opinion piece was “cognizable misconduct.”
Though Chief Judge Diaz noted that Ponsor did not refer to any cases before the Supreme Court, he wrote that the opinion piece “expressed personal opinions on controversial public issues and criticized the ethics of a sitting Supreme Court justice.”
Diaz also cited an amorphous combination of “political implications and undertones” and timing that violated the ethics rule prohibiting federal judges from publicly commenting on the merits of a pending case. Diaz also determined that it could be perceived that Ponsor’s essay was also calling for Alito’s recusal.
So Ponsor got in trouble because someone could think he was calling on Alito to recuse himself from the immunity case.
Ultimately, the order concluded that Ponsor’s comments “diminish the public confidence in the integrity and independence of the federal judiciary,” and he’d violated the ethics canons governing federal judges.
This sounds so very bad, like Ponsor’s behavior is absolutely unheard of for a sitting federal judge. But it’s pretty mild when compared to the actions of Sam Alito himself.
Let’s start with publishing an opinion piece on a controversial public issue. In May 2023, Alito ran to the Wall Street Journal to slam a ProPublica piece reporting that Alito got cozy with billionaire Paul Singer in 2008. Singer’s hedge fund had cases before the Supreme Court at least 10 times in the following years, and Alito never recused from any of them. Hilariously, despite the piece being titled, “ProPublica misleads its readers,” Alito’s rant appeared before the ProPublica piece was even published. Alito based his piece entirely on the questions he’d received from ProPublica.
A couple of months later, Alito sat for an interview with attorney David Rifkin and James Taranto of the Wall Street Journal. Alito complained about “the nonsense that has been written about me” and whined that since no one else was defending him, “I have to defend myself.”
At the time of the interview, Rifkin represented a client in a major tax case before the Supreme Court. Several Democratic senators called for Alito to recuse, but he refused, insisting that when Rifkin interviewed Alito, “he did so as a journalist, not an advocate” and that the case in which Rifkin was involved was never mentioned.
What about “political implications and undertones” and timing, which could lead someone to think Alito was making a statement on a pending case?
Alito’s upside-down distress flag was seen flying in January 2023, while the Court was considering whether to hear a case challenging the results of the 2020 election. The beach house flag was spotted multiple times between July and September of 2023, as the Court considered whether Jan. 6 insurrectionists could be prosecuted for obstruction.
How about Alito’s July 2022 speech where he said that religious liberty was under attack because “it is dangerous to those who want to hold complete power?” The Supreme Court had just decided two major religious liberty cases earlier in the year. He also mocked foreign leaders who criticized the overturning of Roe v. Wade. And in a 2024 commencement speech, Alito again grumbled about attacks on religious liberty and agreed that the nation needed to return to “place of godliness.”
And don’t forget Alito’s continual calls for the Supreme Court to reverse Obergefell v. Hodges, which legalized same-sex marriage, or his complaint that people who “do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots.’”
Alito faces zero consequences because the Supreme Court is exempt from any ethics rules whatsoever. Chief Justice John Roberts is so resistant to ethics reform that he even refused to talk to Congress about it after news broke that Justice Clarence Thomas enjoyed an incredibly luxurious lifestyle thanks to Harlan Crow and other assorted billionaires. There’s also that thing where Thomas’s wife, Ginni, is a full-fledged Trumper who pushed Mark Meadows to overturn the 2020 election and took secret money from Leonard Leo—who has helped remake the courts in the Federalist Society image.
Instead, the Supreme Court has a voluntary Code of Conduct—while all other federal judges are bound by ethics rules. This is how Ponsor’s essay could be found to have harmed public confidence in the “integrity and independence” of the federal judiciary, while the Supreme Court definitively doesn’t have to care if their actions have the same impact.
This complete disdain for the rules that govern the rest of the federal judiciary is another example of how broken the Supreme Court is. It’s not just the refusal to engage in even the mildest of ethics reform. It’s that conservatives have been engaged in a multi-year spree of overturning longstanding precedents in ways that Republicans love—including paving the way for Trump’s federal charges to vanish.
An underreported feature of the complaint that led to Ponsor’s chastisement was its origin. This didn’t all start with some concerned Times reader. Ponsor’s essay was instead first flagged by activist Mike Davis, former chief counsel for nominations to Senate Judiciary Chair Chuck Grassley-turned head of the Article III Project. Davis describes the Project as a “brass knuckles” group that wants to make the judiciary “a hell of a lot more conservative.”
Steve Bannon describes Davis as “a full fucking MAGA warrior.” During the 2024 campaign, Trump even gave Davis a shoutout, saying he was “tough as hell” and he wanted him in a “very high capacity” in the new administration.
It feels like an endless cycle of corruption, doesn’t it? Conservatives use money and power to influence the federal courts—including attacking anyone who dares speak ill of a conservative justice. Then, the conservative justices themselves flout ethics rules and hand down decisions explicitly designed to favor those moneyed conservatives.
The Supreme Court is untouchable, and they know it.