Kagan Pulls Back the Curtain On Supreme Court Ethics Reform, Drops Plan to Enforce Code of Conduct

Supreme Court Justice Elena Kagan spoke about ethics reforms for the court during last week’s Ninth Circuit Judicial Conference — in rare public comments on the topic by a justice. Kagan also spoke on the issue last year and told the moderator she believed that the court would create a code of ethics following the lavish gift scandals involving Justice Clarence Thomas.

“I’m going to pivot to a new topic this year. Old topic from last year. Last year when we spoke, you intimated that there was likely to be a code of conduct coming soon for the US Supreme Court. And sure enough, in November we got that code of conduct,” noted Judge Madeleine C. Wanslee – who moderated the discussion.

“You heard it here first,” joked Kagan.

“Yes we did. Thank you very much. There continue to be stories in the media criticisms. And one of the criticisms of this code of conduct is there does not appear to be an enforcement mechanism. And I’m wondering if you can comment or how would you respond to that criticism?” Wanslee asked. The topic in question has become a hot-button issue following the widespread criticism of Thomas taking millions in gifts from GOP megadonors and President Joe Biden’s vow to push for term limits and an enforceable code of conduct.

“Well, I think it’s a fair one. I mean, I think for the most part, the code of conduct that we put out is a good one. I wouldn’t have signed on if I didn’t think that the essential rules were good rules,” Kagan began, adding:

And there has been some criticism of those rules that the rules themselves depart in certain ways from the rules that apply to other judges. But I think that we made good judgments about when those departures were appropriate, given different features of the Supreme Court. So I think that the rules that we put out are good ones. I think that the thing that, that can be criticized is, you know, rules usually have enforcement mechanisms attached to them. And this one, the set of rules does not. And I think that I mean, I think this is a super hard question honestly.

I think that the enforcers should be judges. I don’t, I can’t think of other people who should enforce a code of conduct, as against judges. And I think it would be quite bad. Maybe this goes back to the collegiality question for us to do it to each other. In other words, for the same, judges who are sitting around the table trying to decide cases to be the people who are saying, oh, no, you broke that rule, or you didn’t break that rule. So then what does that leave?

I mean, it it leaves sort of judges, lower down the food chain, and and that creates perplexities. You know, it’s usually the case that, people who enforce rules are not, you know, we review all of your decisions, and then you are kind of reviewing our decisions, and that’s not usually the case. And so it it does create complications and, and real questions. And it’s, it’s, it’s a hard thing to do to figure out who exactly should be doing this and what kinds of sanctions would be appropriate, for violations of the rules. But, I feel as though we, however hard it is that we, could and should try to figure out some mechanism for doing this.

You know, I would be, pretty happy with. Yeah. I have a lot of trust and faith in the chief justice. You know, if the chief justice appointed some sort of committee of, you know, highly respected, judges with a great deal of experience with a reputation for fairness, you know, yeah, that, that seems like a good solution to me. It would also, you know, benefit us in various kinds of ways because, it would provide a sort of safe harbor. There is sometimes people accuse us of misconduct where we haven’t engaged in misconduct. And, so I think, you know, both in terms of enforcing the rules against people who have violated them, but also in protecting people who haven’t violated them. I think a system like that would make sense. That’s one person’s view.

Watch the full clip above via C-SPAN.