Justice Kagan calls for a way to enforce Supreme Court ethics code
U.S. Supreme Court Justice Elena Kagan sits on a panel at the 2024 Ninth Circuit Judicial Conference in Sacramento, California, on Thursday, July 25. Kagan became the first member of the Supreme Court to call publicly for beefing up the court’s new ethics code by adding a way to enforce it. (AP Photo/Rich Pedroncelli)
Justice Elena Kagan said Thursday that she would support the creation of a committee of judges to examine potential violations of the Supreme Court’s new ethics code, speaking out on a contentious subject as President Biden and others are increasingly calling for reform at the high court.
Kagan suggested that Chief Justice John G. Roberts Jr. could appoint an outside panel of highly respected, experienced judges to review allegations of wrongdoing by the justices, some of whom have faced questions in recent years over unreported gifts of luxury travel, book deals and potential conflicts of interest in key cases.
Last fall, in response to criticism from Democratic lawmakers and outside experts about perceived ethics violations, Roberts announced that the court for the first time had agreed to abide by an ethics code specific to the justices. But the policy did not include a way to examine alleged misconduct, or to clear or sanction justices who might violate the rules.
Since then, a new round of ethical questions, and the court’s rulings this term, have increased calls for change.
Kagan, who was interviewed before a crowd of judges and lawyers at a judicial conference, said the code of conduct embraced by all the justices is a “good one,” but called criticism about the inability to enforce it “fair.”
“Rules usually have enforcement mechanisms attached to them, and this one, this set of rules, does not,” she said, adding that “however hard it is, we could and should try to figure out some mechanism for doing this.”
Kagan emphasized that the high court does not have such a plan in the works and that she was speaking only for herself.
“This is one person’s view, and that’s all it is,” she said.
Kagan, one of three liberals on the high court, engaged in a wide-ranging, candid conversation at the 9th Circuit conference. It touched on her general dislike of the increasingly popular practice of individual justices writing separate opinions even when they agree with the outcome of a particular case; the court’s growing emergency docket; and her frustration with the majority’s willingness in recent years to overturn long-standing precedent.
She told the audience that she is more of a “wall slammer” than a crier when on the losing side of a particularly significant case—responding to a question about Justice Sonia Sotomayor’s recent revelation that she has wept at times after certain opinion announcements.
Kagan spoke less than a month after the conclusion of a momentous term in which the high court’s conservative majority greatly expanded presidential power while making it more difficult for government agencies to regulate vast areas of American life.
The court split along ideological lines in two major decisions: granting former president Donald Trump—and all presidents—broad immunity from prosecution for official actions, and tossing a 40-year-old precedent that had required judges to defer to government agency experts when deciding how to implement ambiguous legislation passed by Congress.
In the case involving Trump, two justices—Clarence Thomas and Samuel A. Alito Jr.—dismissed calls to recuse themselves because of perceived potential conflicts of interest involving political activity by their wives.
Public confidence in the high court is at historic lows. Seven in 10 Americans think the justices make decisions based on their own ideologies, rather than serving as an independent check on the government, according to an Associated Press-NORC poll released in June.
Biden is preparing to endorse proposals for legislation to establish term limits for the justices and an enforceable ethics code, the Washington Post reported this month. He is also considering whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders.
In his speech from the Oval Office Wednesday night, Biden said the issue would be a priority during his final months in office. “I’m going to call for Supreme Court reform, because this is critical to our democracy,” the president said.
During a news conference in front of the Supreme Court building Thursday, Sen. Edward J. Markey (D-Mass.) and Rep. Hank Johnson (D-Ga.) touted the Judiciary Act of 2023, which would expand the Supreme Court by adding four seats and “quickly and correctly right the wrong that has brought us to where we are today,” Markey said.
Many conservatives and Republican lawmakers have opposed such changes, however, accusing liberals of trying to disrupt a court that has shifted dramatically to the right with the addition of three justices nominated by Trump. The changes Biden is talking about would be highly unlikely to pass unless Democrats controlled both chambers of Congress and the White House.
Kagan, who oversees the 9th Circuit, has established something of a tradition of reflecting on—and venting about—the just-completed term at the annual judicial conference. She was interviewed Thursday by Madeleine C. Wanslee, an Arizona bankruptcy judge, and Washington state attorney Roger M. Townsend, a member of the lawyer representatives coordinating committee for the conference.
The justice said she does get frustrated, disappointed and sad when she thinks the court’s majority “did not play by the rules of the judicial enterprise,” particularly when it departs from past precedent.
She predicted uncertainty and instability after the decision to curb federal agency power and overturn the long-standing precedent known as Chevron.
In that case, Kagan issued a forceful dissent, joined by Sotomayor and Justice Ketanji Brown Jackson, in which she said the majority’s ruling would lead to “breathtaking change” by shifting power to the courts and turning judges into the final arbiters on regulatory matters.
The framework established in Chevron has been used extensively by the U.S. government to defend regulations designed to protect the environment, financial markets, consumers and the workplace. The ruling was the third time in as many years that the court tossed precedent, overturning Roe v. Wade in 2022 and eliminating the use of affirmative action in college admissions in 2023.
Kagan wrote that the Chevron precedent was falling victim “to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.”
In another major case this term, the court voted 8-1 to uphold a federal law preventing domestic abusers from possessing guns. Five justices in the majority also chose to write separately, illustrating divisions over how lower courts should evaluate historical practices when reviewing Second Amendment challenges to other gun-related laws.
Such individual opinions, known as concurrences, prevent the court from “giving the kind of guidance lower courts have a right to expect, that the public has a right to expect,” Kagan said. “It muddies the waters of our decisions.”
With five different views, she added, “I don’t know how lower courts are supposed to deal with that really. Mostly I think they should deal with it by ignoring the concurrences.”
Tobi Raji in Washington contributed to this report.
