Elena Kagan calls for better enforcement of Supreme Court’s ethics code

SACRAMENTO — The Supreme Court’s effort to dig itself out of the ethics hole it finds itself in would be greatly aided by some kind of oversight that isn’t provided by the justices themselves, Justice Elena Kagan argued Thursday.

Kagan publicly endorsed calls for a system to enforce the code of ethics the court adopted last year after a raft of bad publicity about ethics issues involving her colleagues led to outrage from Congress and tarnished the court’s prestige.

“The thing that can be criticized is: Rules usually have enforcement mechanisms attached to them, and this set of rules does not,” Kagan told a meeting of federal judges and lawyers.

Kagan said she welcomed the code the court announced last November but that the absence of any means of enforcing it was a glaring omission.

“It's a hard thing to do to figure out who exactly should be doing this and what kinds of sanctions would be appropriate for violations of the rules, but I feel as though we, however hard it is, that we could and should try to figure out some mechanism for doing this,” the liberal justice appointed by President Barack Obama said.

Kagan said there was no simple answer to who should oversee the conduct of the members of the nation’s highest court, but she ruled out the idea that the justices should sit in judgment of each other’s conduct.

“I think it would be quite bad … for us to do it to each other,” she told the Ninth Circuit Judicial Conference.

Kagan said the best choice would likely be “judges lower down the food chain,” even though that “creates perplexities” by inverting the usual process of the justices overseeing subordinate federal courts.

Kagan suggested that Chief Justice John Roberts could establish a committee of lower-court judges to tackle complaints against the justices. She also did not rule out the possibility that Congress could pass a law requiring something similar, as many Democrats in Congress have endorsed. In her remarks to the same conference last year, Kagan disputed her colleague Justice Samuel Alito’s public claim that Congress has no role to play in policing ethics at the high court.

Kagan made no direct reference Thursday to the ethics claims that have swirled over two of her conservative colleagues over the past couple of years: Alito was accused of failing to report a private airplane flight to Alaska paid for by a wealthy Republican donor, and Justice Clarence Thomas faced stories disclosing that he’d vacationed by private yacht with another major GOP donor. Alito and Thomas also faced calls to recuse themselves from cases stemming from the Jan. 6, 2021, attack on the Capitol, after their wives seemed to show solidarity with those who sought to overturn the election.

Creating an enforcement mechanism, Kagan suggested, would be preferable to the current system where justices basically decide for themselves whether they are guilty of violating the code.

“It would provide a sort of safe harbor. … Sometimes people accuse us of misconduct where we haven't engaged in misconduct. And, so, I think both in terms of enforcing the rules against people who have violated them, but also in protecting people who haven't violated them, I think a system like that would make sense,” she said.

A Supreme Court spokesperson did not immediately respond to a request for comment from the chief justice, but Kagan said she was by no means suggesting any consensus on the court in favor of any enforcement regime.

“I’m doing no intimating here,” said Kagan. “This is one person’s view.”

During an hourlong onstage interview conducted by a judge and an attorney at a convention center a few blocks from the state Capitol, Kagan also lamented what she described as a current tendency by the justices to splinter in significant cases — sometimes largely agreeing on a result, but laying out very different rationales for reaching it.

“We don’t seem to be able to coalesce all that easily on some cases,” Kagan said. “There is a lot of separate writing that the court is doing right now. … It’s not a good thing for the court. It prevents us, I think, from giving the kind of guidance that lower courts have the right to expect and that the public has the right to expect. It muddies the waters.”

Kagan also complained that some of her colleagues use concurring opinions to try to recast the majority’s view. She noted that in a major gun rights case decided last month, the decision was nominally 8-1, but the court produced seven opinions. Kagan, who joined a concurrence by Justice Sonia Sotomayor, said some mischief was afoot in the plethora of opinions.

“Everybody sort of tries to spin it one way or another,” Kagan said. “Often people use separate opinions to pre-decide issues that aren't properly before the court and that may come before the court in a year or two and try to give signals as to how lower courts should decide that, which I don't think is right.”

Kagan said efforts by individual justices to offer their own take on what the court decided create confusion. “I don’t know how lower courts are supposed to deal with it really. Mostly, I think they should deal with it by ignoring it, basically,” she said.

Kagan acknowledged profound disappointment with some of the rulings the court issued in the current term, as the three liberal justices often found themselves outvoted by the phalanx of six conservatives they now face on the bench. However, she said she doesn’t retreat to her office and cry as Sotomayor, speaking to an audience at Harvard in May, said she has sometimes done in recent years.

“I’m not much of a crier, myself,” Kagan quipped. “I get where the frustration comes from. I’m more of a wall-slammer.”

Kagan said the cases that trouble her the most are where she believes her colleagues aren’t adhering to principle or are straying beyond what she views as the proper role for judges.

“Courts shouldn't use individual cases as vehicles to advance some broader agenda or some broader project to change our governance structure or our society,” she said. “Hopefully, it doesn't happen much, but there have been cases in the last few years in which it has happened to my lights, at least.”

Kagan did not discuss the largely 6-3 decision the court issued earlier this month upholding much of former President Donald Trump’s arguments that he and other presidents enjoy immunity from criminal charges for their official acts.

However, she struck a theme she has in some other appearances where she’s suggested that there is a degree of banality and even misdirection in anecdotes some of her colleagues offer about the social interactions among the justices.

“I get frustrated sometimes when people talk about the collegiality question,” Kagan said. “Some of my colleagues share a great love of baseball. Some of my colleagues share a great love of golf. … That’s good for the court, but I can’t imagine why the public should care.”

Kagan said the social engagement matters only if it means the justices are engaging with each other’s legal arguments and trying to reach consensus where possible.

“Sometimes going to the opera together might produce that result; sometimes not,” she said.

The only ruling from this term that Kagan addressed in detail was the Supreme Court’s decision overturning a 40-year old precedent, known as the Chevron doctrine, that required judges to defer to federal agencies’ interpretation of relevant congressional statutes when those interpretations were reasonable. The court’s ruling last month, which split the justices 6-3 along ideological lines, said judges should interpret the law as they see fit in most instances where agency actions are challenged.

Kagan dissented from that decision and would have left the longstanding doctrine in place, but she said it’s not clear whether federal agencies will actually find their authority gutted as a result.

“I’m not exactly sure how it's going to play out,” she said. The justice noted that judges still have to pay “appropriate respect” to agency expertise, and Congress still has the power to explicitly grant agencies discretion about the scope of their authority. She also said some judges may struggle to resolve issues that are more about policy than law.

“The dictionary is not going to tell you much,” Kagan said. “There’s going to be a lot of uncertainty and a lot of instability on that front.”

While some critics have faulted the court for taking many fewer cases each term than it used to decades ago, Kagan said she still finds the workload pretty heavy, largely due to an increasing volume of emergency applications presented on what some call the court’s “shadow docket.” She said the court probably brought the tsunami of urgent applications on itself by granting several such petitions blocking Trump administration actions, but that the phenomenon means there’s no real time off for her or her clerks.

“Our summers used to be, actually, summers,” Kagan said.