Justice Kagan supports ethics code but says Supreme Court divided on how to proceed

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U.S. Supreme Court Justice Elena Kagan, left, sits onstage for a panel at the 9th Circuit Judicial Conference on Thursday, August 3, 2023, in Portland, Ore., with California bankruptcy lawyer Misty Perry Isaacson, center, and Madeleine C. Wanslee, a U.S. Bankruptcy Judge for the District of Arizona. Justice Kagan publicly declared her support for an ethics code for the Supreme Court during the panel but said there was no consensus among the justices on how to proceed. (AP Photo/Claire Rush)

PORTLAND, Ore. – Justice Elena Kagan publicly declared her support for an ethics code for the U.S. Supreme Court but said there was no consensus among the justices on how to proceed, suggesting the high court is grappling with public concerns over its ethics practices.

“It’s not a secret for me to say that we have been discussing this issue. And it won’t be a surprise to know that the nine of us have a variety of views about this,” she said Thursday at a judicial conference in Portland, Oregon.

The Supreme Court is navigating a fraught moment in its history. It has come under growing scrutiny for its lack of an official code of conduct, and public trust in the body is at a 50-year low following a series of polarized rulings, including the overturning of Roe v. Wade and federal abortion protections last year.

The Associated Press obtained thousands of pages of documents that show how justices spanning the court’s ideological divide have lent the prestige of their positions to partisan activity — by headlining speaking events with prominent politicians — or to advance their own personal interests, such as book sales, through college visits. And reporting from ProPublica earlier this year revealed Justice Clarence Thomas participated in lavish vacations and a real estate deal with a top Republican donor.

One of the court's three liberal justices, Kagan said the court could draft and adopt its own code of conduct. Such a move, she said, would do away with questions over whether Congress has the power to impose ethics rules on the high court.

Democrats in Congress have pushed Supreme Court ethics legislation through a Senate committee. But the bill’s prospects in the full chamber are dim amid opposition from Republicans, who say the measure would violate the separation of powers.

Kagan acknowledged there is not much precedent establishing whether Congress can enact ethical rules for the court but added that Congress can regulate various aspects of it.

“Our whole system is one of checks and balances. ... We’re not imperial, and we too are a part of a checking and balancing system in various ways,” she said of the court.

“Congress, when it decides whether to pass legislation ... ought to, and usually does, consider the constitutionality of its own actions,” she added.

Her comments put her at odds with her fellow court member Justice Samuel Alito, who last month said Congress does not have the authority to establish ethics rules for the court.

“I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court—period,” the conservative justice said in an interview he gave to the Wall Street Journal opinion pages.

Kagan on Thursday was speaking to an audience of judges, attorneys and court personnel from the 9th Circuit, which spans the western states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska and Hawaii.

It’s not the first time she has used the forum to comment on issues surrounding the court. At the 9th Circuit’s conference in Montana last year — held less than a month after the Supreme Court overturned Roe v. Wade — Kagan made headlines for warning the court risks losing its legitimacy if it is perceived as political.

The 63-year-old justice made similar comments on Thursday, emphasizing “the importance of courts looking like they're doing law, rather than willy-nilly imposing their own preferences as the composition of the court changes.”

Some of the biggest decisions of the past term were made along ideological lines, with the six conservative justices in the majority and the three liberal justices in dissent. These included the scrapping of President Biden’s $400 billion plan to cancel or reduce federal student debt loans, ending affirmative action in higher education, and issuing a major ruling that impacts gay rights.

However, this past term was overall less divided and included more unanimous or near-unanimous rulings than the previous one.

In four major cases, conservative and liberal justices joined to reject the most aggressive legal arguments advanced by conservative state elected officials and advocacy groups. Those included upholding a Native American child welfare law and a Biden administration immigration policy.

The Supreme Court will next meet in the fall to resume hearing cases.