SACRAMENTO, Calif. — Justice Elena Kagan said Thursday that she would support the creation of a committee of judges to examine potential violations of the Supreme Court’s new ethics code, speaking out as President Biden and others are increasingly calling for reform at the high court.
In an interview before a crowd of judges and lawyers at a judicial conference, Kagan suggested that Chief Justice John G. Roberts Jr. could appoint an outside panel of highly respected, experienced judges to review allegations of wrongdoing by the nine justices.
Last fall, in response to criticism from Democratic lawmakers and outside experts about perceived ethics violations, Roberts announced that the court for the first time had agreed to abide by an ethics code specific to the justices. But the policy did not include a way to examine alleged misconduct, or to clear or sanction justices who might violate the rules. Since then, a new round of ethical questions, and the court’s rulings this term, have increased calls for change.
Kagan said the court’s code of conduct, embraced by all the justices, is a “good one,” but said criticism about the inability to enforce it is “fair.”
“Rules usually have enforcement mechanisms attached to them, and this one, this set of rules, does not,” she said, adding that “however hard it is, we could and should try to figure out some mechanism for doing this.”
Kagan emphasized that the high court does not have such a plan in the works and that she was speaking only for herself.
“This is one person’s view, and that’s all it is,” she said.
Kagan, one of three liberals on the high court, spoke at the 9th Circuit conference less than a month after the conclusion of a momentous Supreme Court term in which the conservative majority greatly expanded presidential power while making it more difficult for government agencies to regulate vast areas of American life.
The court split along ideological lines in two major decisions: granting former president Donald Trump — and all future presidents — broad immunity from prosecution for official actions, and overturning a 40-year-old precedent that had required judges to defer to government agency experts to determine how to implement ambiguous legislation passed by Congress.
In the case involving Trump, two justices — Clarence Thomas and Samuel A. Alito Jr.— dismissed calls to recuse themselves because of perceived potential conflicts of interest involving political activity by their wives.
Public confidence in the high court is at historic lows. Seven in 10 Americans think the justices make decisions based on their own ideologies, rather than serving as an independent check on the government, according to an Associated Press-NORC poll released in June.
Biden is preparing to endorse proposals for legislation to establish term limits for the justices and an enforceable ethics code, The Washington Post reported this month. He is also considering whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders.
In his speech from the Oval Office Wednesday night, Biden said the issue would be a priority during his final months in office. “I’m going to call for Supreme Court reform, because this is critical to our democracy,” Biden said.
Many conservatives have opposed such changes, however, accusing liberals of trying to disrupt a court that has shifted dramatically to the right with the addition of three justices nominated by Trump. The changes Biden is talking about would be highly unlikely to pass unless Democrats controlled both chambers of Congress and the White House.
