Kagan Wants a Crackdown on SCOTUS Ethics

The Supreme Court requires oversight and enforcement of its new ethics code, Justice Elena Kagan argued Thursday, suggesting lower-court judges might serve to police the nation's highest court. The liberal justice said she welcomed the ethics rules, but saw reason to criticize the lack of "enforcement mechanisms attached to them." It's difficult to figure out who should be in charge of enforcement and "what kinds of sanctions would be appropriate for violations," Kagan told the Ninth Circuit Judicial Conference, a gathering of federal judges and lawyers, per Politico. But "we could and should try to figure out some mechanism for doing this."

Kagan said it "would be quite bad" for justices to police the conduct of other justices and instead suggested Chief Justice John Roberts craft a committee of lower-court judges who would review ethics complaints. This "creates perplexities" by inverting the federal court hierarchy, Kagan said. But "it would provide a sort of safe harbor," protecting justices from unfounded complaints while "enforcing the rules against people who have violated them." Conservative Justices Samuel Alito and Clarence Thomas, in particular, have been accused of failing to report gifts and potential conflicts of interest in major cases.

There are no plans for the kind of enforcement Kagan described, though President Biden has said reforming the court will be a priority during his final months in office, per the Washington Post. Kagan, who made clear she was giving her personal opinion, also criticized the justices' tendency to give individual opinions, or concurrences, laying out their own, sometimes very different reasons for making major decisions. The idea is to "pre-decide issues that aren't properly before the court ... and try to give signals as to how lower courts should decide that, which I don't think is right," Kagan said. "It prevents us, I think, from giving the kind of guidance that lower courts have the right to expect and that the public has the right to expect." (More Elena Kagan stories.)