(Photo by Brendan Smialowski/Getty Images)
Last year, after getting absolutely hammered on judicial ethics for months, the Supreme Court adopted an ethics code. But this was as effective as thoughts and prayers, since, as everyone pretty much immediately pointed out, there was no enforcement mechanism. More to the point, as a work of PR, it didn’t work, as the SCOTUS ethics scandals just keep coming.
But at least one person thinks something good can be salvaged from the performative garbage. Justice Elena Kagan spoke at the Ninth Circuit’s Judicial Conference and she shared her thoughts on the lingering ethics issues facing the Court. She noted, “I think that the rules that we put out are good ones.” But she focused in on the major criticism of the code, saying, “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.”
Kagan acknowledged that figuring out *how* to enforce a code of conduct is a challenge.
“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.’”
But it is surmountable.
“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.”
Though she was quick to point out these were just her thoughts on the matter.
Fix the Court’s Gabe Roth had this to say about Kagan’s comments.
“For any Supreme Court ethics framework to have any teeth, someone must hold the justices to it, and for what should be obvious reasons, it can’t be the justices themselves.
“So it makes sense that Justice Kagan would endorse a solution whereby lower court judges — I’d like to include retired justices, as well — play the role of ethics enforcers. After all, lower court judges play that very role under the Ethics in Government Act, with the Judicial Conference and not the high court possessing the power to refer a justice who violates the disclosure law to the Justice Department.
“Do Kagan’s comments mean she’d grant a ‘committee of highly respected judges’ the power to compel a justice to recuse from a case or refile a disclosure? That remains to be seen, and I believe any constitutional questions can be worked out. But given that it was Justice Kagan who talked about the need for a SCOTUS ethics code well before her peers, her vision on this topic should not be dismissed.”
It is true that Kagan has been, among Court members at least, leading the charge for ethics reform. In any event, they need to get on these changes ASAP, unless they like the cratering approval rating — and legitimacy — of the High Court.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].