On Monday, December 23, 2024, Jack Greiner, a partner at Faruki PLL law firm in Cincinnati, published an opinion piece on Cincinnati.com addressing the recent ethical controversy surrounding federal judge Michael A. Ponsor. The piece raises questions about whether a federal judge should face disciplinary action for criticizing a sitting Supreme Court justice.

Judge Ponsor, who serves in the District of Massachusetts, authored an essay for The New York Times on May 24, 2024, titled “A Federal Judge Wonders: How Could Alito Have Been So Foolish?” In this essay, Ponsor scrutinized Supreme Court Justice Samuel Alito’s decision to display an upside-down American flag and an “Appeal to Heaven” banner at his residences. Ponsor expressed concerns about the potential public perception of bias that such actions could foster, particularly in light of the connection between those symbols and the January 6 Capitol protests.

In his essay, Ponsor emphasized that the public’s trust in judges is paramount, stating that actions perceived as partisan could undermine that trust. Following the publication of the essay, an ethical complaint was lodged against Ponsor by an unnamed individual, claiming that his comments were inappropriate and prejudicial. The complaint argued that the judge’s criticism of another judge could impact the legal outcomes for defendants in ongoing cases.

Chief Judge Albert Diaz of the Fourth Circuit reviewed the situation and concluded that Ponsor’s essay was indeed inappropriate. Diaz contended that the piece expressed personal opinions on controversial matters and criticized the ethics of a sitting Supreme Court justice, potentially eroding public confidence in the judiciary’s integrity. He cited violations of Canons 1 and 2A of the Code of Conduct for United States Judges, which emphasize the importance of maintaining public trust in the judicial system.

Furthermore, Diaz asserted that Ponsor’s remarks could be seen as a violation of Canon 3, which prohibits judges from publicly commenting on the merits of ongoing cases. He noted that the timing of the essay’s publication coincided with significant media attention on calls for Justice Alito’s recusal from the January 6-related cases. Despite Diaz’s conclusions, Ponsor did not reference these cases in his essay nor did he call for Alito’s recusal; he merely expressed concern about the implications of Alito’s actions on public perception.

In his opinion piece, Greiner suggests that the ethical complaint against Ponsor illustrates a troubling conflict between judicial ethics and free speech. He defends Ponsor’s right to express concerns about Justice Alito’s conduct, arguing that the judge’s commentary was justified given the circumstances. Greiner posits that the disciplinary action against Ponsor could be viewed as an overreach, potentially stifling important discussions regarding judicial accountability and integrity.

“And being frank, it exposes some judicial thin skin. Not a good look,” said Greiner.

 

 

Source: Cincinnati Enquirer