Liberal-leaning justice Elena Kagan said on Monday that a panel of lower-court judges could enforce the Supreme Court’s new ethics code that was adopted last November.
Kagan first endorsed the idea in July and previously praised the ethics code, which was formed following reports of undisclosed luxury travel aimed at conservative justices Clarence Thomas and Samuel Alito. Though praised by Democratic lawmakers as a step in the right direction toward holding the Court accountable in their eyes, the code was seen as only a means of self-enforcement by the justices.
Kagan believes a panel of retired or highly experienced judges could act as an external enforcement mechanism that would fairly handle allegations made against the justices.
“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,” she said on Monday at the New York University School of Law. “So, it seems like a salutary thing for the court.”
Her recommendation has faced criticism from legal-ethics scholars, who say the enforcement proposal could lead to a host of meritless allegations or that the judge panel would be too deferential to the nine justices. The Obama appointee rejected both claims, saying the selected judges would be tasked with dismissing frivolous accusations while assessing those with merit and doing so without holding back in their scrutiny.
“Judges . . . they’re not so afraid of us,” she said. “I think that that’s in the picking, basically. And I think that there are plenty of judges around this country who could do a task like that in a very fair minded and serious way.”
Kagan’s remarks come after Justice Ketanji Brown Jackson said earlier this month that she would be open to the idea of an enforceable ethics code without explicitly endorsing it. There is no indication as to where the other justices stand on the idea or whether they have discussed the matter with each other in private.
Last year, Kagan suggested that Congress holds broad powers to dictate the Supreme Court’s ethics processes in response to Alito’s argument to the contrary. Backing away from that statement on Monday, she said, “I don’t want to say anything about that because, you know, one day, who knows, I might have to decide a case involving that.”
Democrats led the push to impose an ethics code on the Supreme Court, but because the code lacked enforcement provisions, they were left unsatisfied.
Since then, the executive branch has taken an interest in ensuring that the ethics rules are enforced. In July, President Joe Biden announced a three-point plan to reform the Supreme Court; one of the points involved an enforced code of ethics that would tackle corruption, and another proposed 18-year term limits for justices in place of lifetime appointments.