Kagan says Supreme Court needs ‘mechanism’ to enforce ethics

Supreme Court Justice Elena Kagan supports creating a new “mechanism” that would provide the means for an enforceable ethics code for the nine justices, she said Thursday at a judicial conference.

Speaking at the conference in Sacramento, California, former President Barack Obama’s nominee said she had spoken with Chief Justice John Roberts about the prospects of forming a panel of judges to help enforce the ethics code they adopted in November, according to Bloomberg.

Kagan described the hypothetical enforcement arm as “a kind of commission of highly respected judges with a lot of experience and a reputation for fairness.”

While Kagan acknowledged the difficulty of deciding who should be responsible for upholding ethics at the nation’s highest court, she said she believed “we could and should try to come up with a mechanism to do this,” in response to a question from a moderator at the annual conference of the U.S. Court of Appeals for the 9th Circuit.

The recent adoption of an ethics code was a multifaceted decision that had been under consideration by the Supreme Court justices for years. It also came at a time when Democrats and nonprofits were raising concerns about perceived ethical conflicts by Republican-appointed Justices Clarence Thomas and Samuel Alito. There is no evidence that gifts or lavish travel opportunities the justices have received from outsiders in the past have influenced the justices’ decisions from within the bench.

Despite the Supreme Court following the same ethics guidelines enforceable for federal lower court judges, Democratic lawmakers and progressive organizations have been aggressively calling for a way to enforce the code the justices recently adopted. In April, Reps. Ilhan Omar (D-MN) and Jamie Raskin (D-MD) were among a group of Democrats who voiced support for a proposed Judicial Ethics Enforcement Act, which would create an Office of the Inspector General within the federal judiciary and allow it to “conduct investigations into alleged violations of the Code of Conduct for Justices of the Supreme Court of the United States.”

But not every judge thinks an enforceable ethics code would be wise. Last July, Alito said in an interview with the Wall Street Journal that Congress has no authority to legislate in this area, and that there is no provision in the Constitution that gives them the authority to regulate the Supreme Court — period.

During her discussion at the conference this week, Kagan said there is one thing to criticize about the current code: its lack of enforceable measures.

“Rules typically have enforcement mechanisms, but these rules do not,” Kagan told the gathering of federal judges and lawyers.

It was not immediately clear how far Kagan and Roberts’ talks on an enforceable ethics code have progressed. Her comments also came after recent reports that President Joe Biden is weighing a proposal to overhaul the judiciary, though White House press secretary Karine Jean-Pierre said she had no “policy announcements” this week.

Kagan’s comments followed a tumultuous term at the Supreme Court, during which the justices ruled on landmark cases, including one that dealt a blow to the administrative state by Chevron doctrine, which for decades told courts to defer to government agencies when a regulatory law was otherwise ambiguously drafted by Congress.

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Kagan also took aim at a recent practice of justices writing separate opinions under majority decisions, as in a recent case known as United States v. Rahimia ruling that upheld a federal gun law that prohibits domestic abusers with a civil restraining order from possessing a gun.

“Everybody tries to spin it one way or another,” Kagan said. “Often people use separate opinions to pre-decide cases that are not properly before the court, and that may be before the court in a year or two, and try to send signals about how lower courts should decide them, which I don’t think is right.”