Bloomberg Law
May 24, 2023, 5:00 PM

Kagan Takes Small But Real Step Toward High Court Transparency

Philip Allen Lacovara
Philip Allen Lacovara

Chief Justice John Roberts, speaking for the first time publicly on the ethics scandals that have recently plagued the Supreme Court, said Tuesday he is “committed” to ensuring the high court adheres to the highest standards of conduct.

The court has largely bucked pressure to tighten its ethics rules, with Roberts even declining an invitation to discuss the matter in front of the Senate Judiciary Committee. But at least one justice took a step toward greater transparency this week—perhaps giving a preview of the types of incremental moves the high court could make to rebuild trust.

Justice Elena Kagan noted, buried in the court’s May 22 orders list denying review of hundreds of cases, that she was recusing herself from acting on a petition in a capital case, which the rest of the court denied.

She explained briefly: “Justice Kagan took no part in the consideration or decision of this petition. See 28 U.S.C. §455(b)(3) and Code of Conduct for U.S. Judges, Canon 3C(1)(e) (prior government employment).”

Several aspects of this disclosure are notable. First, it appears to hint that at least one justice may be willing to resurrect the type of disclosure that was routine through the end of the nineteenth century but that the court abandoned over a century ago. Specifically, the justices used to offer at least a brief explanation why the justice did not participate in the court’s action.

Since that time, in dozens of cases per year, one or more justices stays out of a matter, but the parties and courtwatchers are left to wonder why—financial investment in one of the parties, personal friendship with the lawyers, prior involvement with the case as counsel or as a lower court judge, or any other reason.

In this matter, Kagan flagged her rationale—prior government employment. She had been the US Solicitor General when the capital defendant had come before the court many years earlier.

Second, in explaining her recusal, Kagan referred to the Code of Conduct for United States Judges. The ethical standards detailed in that code were promulgated by lower court judges who comprise the Judicial Conference. But the code applies by its terms only to judges below the Supreme Court.

While court reform groups have pressed the Supreme Court to adopt it—or something like it—for the justices themselves, they have stubbornly refused to do so. Kagan’s action suggests a crack in the obstinacy.

Third, Kagan’s explanation for her recusal came in response to the death row inmate’s petition for rehearing of an earlier denial of his request for Supreme Court review. When that petition was denied two months ago, Kagan also abstained from participating, but without offering any explanation.

Since that time, the controversy over Justice Clarence Thomas’s failure to disclose anything about his relationship with Republican megadonor Harlan Crow has generated a stream of exposes, editorials, and congressional hearings highlighting the court’s culture of secrecy over potential ethics problems. It is reasonable to infer that Kagan recognized that something more is necessary.

One of the main goals of organizations and public figures pressing for reform at the Supreme Court is to increase the court’s transparency in reporting on relationships that might give rise to a reasonable concern about the individual justices’ objectivity and freedom from outside influences, pressures, or inducements.

Of course, it would be ideal if every justice remained free from such potential taints. But it would be a step in the right direction if the justices at least disclosed those relationships, allowing parties coming before the court as well as the broader public to evaluate their possible impact on the justice’s judicial decisions.

Since the court overruled Roe v. Wade last year, public opinion polls have shown a dramatic erosion in the public’s trust in the court’s integrity, not just its objectivity. This unprecedented collapse in public confidence in this crucial institution flows not just from dissatisfaction with the overruling of Roe and the process by which the court’s membership has been manipulated for ideological purposes. We have seen similar discontent periodically in the court’s history in reaction to particular decisions or patterns of decisions.

But what is different this time is that opinion surveys for the first time are showing that large segments of the populace not only disagree with the court’s decisions but now doubt the very honesty and integrity of the justices. That kind of doubt threatens the rule of law in a unique way.

Despite frequent calls on the court to follow the same standards of conduct and disclosure that apply to all other federal judges, the justices have arrogantly rebuffed these entreaties, claiming “just trust us.” Very few observers are willing any longer just to assume that everything is fine and nothing new needs to be done.

It was against this backdrop that Kagan took what may be one small step in the road to transparency, albeit a guarded and somewhat opaque one.

One can hope that she is not alone and that this is just the first step in evolving disclosure that can help restore public confidence in the court. Kagan can turn to her colleagues and say: See, that wasn’t so hard.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Philip Allen Lacovara was deputy solicitor general of the United States for criminal and national security matters, counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

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