Kagan says there must be a way to enforce the Supreme Court’s new ethics code

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SACRAMENTO, Calif. — Justice Elena Kagan on Thursday became the first member of the U.S. Supreme Court to publicly call for strengthening the new ethics code by adding a way to enforce it.

In her first public remarks since the nation’s highest court concluded its term earlier this month, Kagan said she wouldn’t have signed the new rules if she didn’t believe they were good. But having good rules isn’t enough, she said.

“What can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this — this set of rules — doesn’t,” Kagan said at an annual judicial conference held by the 9th Circuit. More than 150 judges, attorneys, court staff and others attended.

It would be difficult to figure out who would enforce the ethics code, though it would likely be other judges, the liberal justice said, adding that another difficult question is what to do when the rules are broken. Kagan suggested that Chief Justice John Roberts could appoint a committee of respected judges to enforce the rules.

Democrats, including President Joe Biden, have again discussed reforms to the Supreme Court, including possible term limits and an ethics code enforceable by law.

The court had been considering adopting an ethics code for several years, but the effort took on added urgency after ProPublica reported last year that Justice Clarence Thomas failed to disclose lavish trips he accepted from a major Republican donor. ProPublica also reported on an undisclosed trip to Alaska by Justice Samuel Alito, and The Associated Press has published stories about both liberal and conservative justices engaging in partisan activities.

Earlier this year, Alito came under renewed criticism after The New York Times reported that an upside-down American flag, a symbol associated with former President Donald Trump’s false claims of election fraud, was hanging outside his home. Alito said he had nothing to do with the flag being upside-down.

Public confidence in the courts has plummeted in recent years. In June, a poll for The Associated Press-NORC Center for Public Affairs Research found that 4 in 10 American adults have little confidence in judges, and 70 percent believe they are guided by their own ideology rather than acting as neutral arbiters.

Kagan, who was nominated to the Supreme Court in 2010 by then-President Barack Obama, said Thursday that a way to enforce the ethics code would also protect judges if they are wrongly accused of misconduct.

“Both in terms of enforcing the rules against people who have broken them, and in terms of protecting people who have not broken them – I think such a system would make sense,” she said.

Kagan weighed in on other issues as well. She said that justices should generally avoid issuing separate opinions on cases when they agree on the overall outcome, which could confuse lower courts. She stressed the importance of respecting precedent as judges. And she said that justices “should not use individual cases as vehicles to advance a broader agenda.”

The Supreme Court has ruled on a range of controversial issues this term, from homelessness to abortion access to presidential immunity. Kagan was in the minority when she opposed decisions that cleared the way for states to enforce bans on homeless encampments and largely made former presidents immune from criminal prosecution for official actions. Kagan joined the court’s eight other justices in upholding access to mifepristone, an abortion drug.

Kagan has spoken in the past about how the court is losing confidence in the eyes of the public. She said after the court Roe vs. Wade in 2022 that judges could lose their legitimacy if they are seen as “an extension of the political process or if they impose their own personal preferences.”

At the start of her speech on Thursday, Kagan reflected on a time decades ago when the public held the Supreme Court in high regard. The late Justice Sandra Day O’Connor served on the high court — the first woman in history to do so.

“Because of her decision-making at that time, I mean, I think people generally had a deep reservoir of respect for the court,” Kagan said. “What better thing can you say about a judge who’s been put in this incredibly important decision-making position than that? That she left the court a better, more respected institution than she found it.”

Associated Press writer Sophie Austin wrote this story. Mark Sherman in Washington contributed to this report.