Justice Elena Kagan keeps expressing support for an enforceable Supreme Court ethics code. During remarks this week at New York University School of Law, the justice returned to a theme she explored earlier this summer. And Kagan’s latest comments follow a recent interview by Justice Ketanji Brown Jackson, in which Jackson likewise spoke approvingly of implementing an enforcement mechanism for the high court’s code.
The court adopted a code last year, but it lacks any means of enforcement, which observers immediately realized made it toothless.
NBC News reported that Kagan said Monday at NYU:
It seems like a good idea in terms of ensuring that we comply with our own code of conduct going forward in the future. It seems like a good idea in terms of ensuring that people have confidence that we’re doing exactly that.”
And while there are questions about how such a code could be enforced, Kagan said that a panel of lower court judges appointed by Chief Justice John Roberts could weed out baseless claims against justices while scrutinizing meritorious ones.
President Joe Biden has pushed for a binding code among his proposed Supreme Court reforms. Whether one comes to pass — either externally imposed by Congress or internally by the court — remains to be seen. But it continues to be significant that justices are speaking out on the issue, even if it’s only a couple of them so far.
To be clear, having an enforceable code doesn’t have to be a partisan issue. But when it’s apparently the Republican-appointed justices who don’t want enforcement, it needlessly takes on a more partisan air. If the Republican-appointed supermajority of the court wanted such a code, it could have pushed for one.
That appearance of partisanship is exacerbated by the fact that it was the ethical controversies of Republican-appointed Justices Clarence Thomas and Samuel Alito that spurred the pressure to create the current (weak) code. Indeed, public scrutiny of those justices may well make them less likely to subject themselves voluntarily to further scrutiny, much less actual consequences.
Perhaps no one would really want to face any consequences for anything if they had the choice — but most of us don’t decide the rules by which we play. The Supreme Court’s ongoing lack of a binding ethical code highlights the degree to which the justices effectively play by a different set of rules: their own.
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