Justice Elena Kagan on Thursday defended the code of conduct the Supreme Court created last year, but conceded there needs to be a way to enforce the rules for it to be more effective.
“I think that the rules that we put out are good ones,” Kagan said at a judicial conference in Sacramento. “I think that the thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them. And this one, this set of rules does not.”
After the Supreme Court came under intense scrutiny in 2023 following a series of blockbuster investigative pieces that turned a spotlight on the alleged ethical lapses of several of the justices, the nine justices released an ethics code in November in an attempt to assuage concerns raised by Democratic lawmakers and others that its members had no formal code of conduct they were required to adhere to.
But notably absent from the code of conduct was an enforcement mechanism to hold justices accountable for any violations of the code, leading some court observers to regard it as a toothless Band-Aid for larger ethics issues that have dogged the court. The document leaves a wide range of decisions up to the discretion of individual justices, including decisions on recusal from sitting on cases.
Kagan on Thursday called criticism of the code “fair,” and went on to say that she thought the best enforcers of it for the Supreme Court would be lower-court judges, but not the justices themselves.
“I can’t think of other people who should enforce a code of conduct … against judges. And I think it would be quite bad … for us to do it to each other,” she said. “In other words, for the same judges who are sitting around the table trying to decide cases, to be to be the people who are saying, ‘Oh, no, you broke that rule or you didn’t break that rule.’”
The comments were made before an audience of judges and lawyers at the 9th US Circuit Judicial Conference, in response to a question. Kagan made the first public appearance of the nine justices since the court wrapped up a historic and contentious session earlier this month in which Kagan and her two liberal colleagues found themselves on the losing side of many of the biggest cases.
“I feel as though however hard it is that we could and should try to figure out some mechanism for doing this,” the liberal justice said. “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, that seems like a good solution to me.”
Kagan said that she was sharing only her own opinion.
“I’m doing no intimating here,” she said, attempting to dismiss any speculation that she was revealing anything that the court was actively working on. “This is one person’s view and that’s all it is.”
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