Kagan’s High Court Ethics Proposal Poses Enforcement Challenges

Impaneling a committee of judges to enforce the US Supreme Court’s ethics code as suggested by Justice Elena Kagan could improve public confidence but would likely be toothless in practice, legal scholars said.

During a speech at a judicial conference in Sacramento, California, on Thursday, Kagan said a committee of highly respected judges appointed by the chief justice could be a solution to the lack of an enforcement mechanism in the court’s newly adopted code of conduct.

“It’s feasible, but it will achieve nothing,” said Stephen Gillers, an emeritus professor at New York University School of Law who’s written about legal and judicial ethics.

Lower federal court judges can’t be disciplined now for violating a similar code of conduct and that’s been in place for over 50 years, he said.

Recusal Review

The court has been embroiled in controversy since reporting revealed Justice Clarence Thomas failed to report lavish vacations, private jet flights, and other gifts he received. Though the court adopted a formal code of conduct in November in response to growing demands for transparency and accountability, it was criticized for being unenforceable.

The lack of an enforcement mechanism generated criticism after Justice Samuel Alito rejected Democratic calls in May to recuse himself from cases involving former President Donald Trump and the Jan. 6 Capitol attack. The New York Times had reported that flags associated with far right cases were seen flying at Alito’s homes. The conservative justice blamed his wife for displaying the flags in letters to lawmakers and said he wouldn’t step aside.

Federal law calls for the justices to disqualify themselves from cases in which their impartiality might reasonably be questioned, but they’re allowed to make that decision on their own.

If a committee is put in place, all nine justices would have to agree to abide by the panel’s determinations in order for it to work, said Gabe Roth, executive director of Fix the Court, a nonprofit that advocates for changes in how the court functions.

Even if Congress passed such a law, it’s an open question whether all nine would go along with it, he said.

Emory University Law professor Michael Broyde said the justices would have to vote on whether to accept each individual determination from the committee on a recusal.

Any committee the chief impanels “can be overturned by five votes on the court,” he said. “There’s no getting around that.”

Still, Broyde and Roth said the proposal is a positive step forward.

“I don’t think the committee would have any real enforcement power, but I think what the committee would do is take it out of the hands of the particular justice and now move it to the court,” Broyde said, adding “that would be a change for the better.”

Not everyone is convinced Kagan was suggesting the committee would review recusal requests. Gillers said that wasn’t how he interpreted her remarks and asked how the timing of it would work.

“Let’s say a party moves to recuse a justice while a case is pending in the Supreme Court,” he said. “There’s not a whole lot of time for litigating that question.”

When it comes to unreported gifts, Gillers said there’s already an enforcement mechanism in the law that requires the justices to disclose what they received in their annual financial disclosures.

“Those provisions are statutorily mandated and there is power in the attorney general to enforce them with civil and criminal prosecution,” he said.

No Easy Fix

Democrats have put forth various proposals to expand the number of justices or sett term limits for its members, who are appointed to the bench for life. Rep. Alexandria Ocasio-Cortez (D-N.Y.) filed articles of impeachment against Thomas and Alito earlier this month. But with Republicans in control of the House, the measures have little chance of succeeding.

With an increasing number of partisan, politically motivated attacks on the justices, Case Western Reserve University School of Law professor Jonathan Adler said it’s good to be thinking more broadly about how to create greater confidence in the court and judicial ethics.

That said, Adler cautioned against thinking there’s an easy fix.

“The folks that want to attack the court for partisan reasons aren’t going to be dissuaded by even the best reform proposals,” he said.

Kagan noted there are difficulties in deciding who should enforce the court’s code of conduct “and what kind of sanctions would be appropriate for violations of the rules.”

She acknowledged it’s unusual to have lower court judges police the justices when their decisions are being reviewed by the Supreme Court. Selecting retired justices or retired lower court judges could also be awkward if they’re friends with the justices, but those aren’t reasons not to do it, Roth said.

“There are benefits and disadvantages of leaving it up to the court, but as a first step I think it’s great for the court to acknowledge there’s a problem and seek a solution,” he said.

It’s not clear how much enforcement power an ethics committee like the one Kagan is suggesting would have due to separation of powers or if it would survive a legal challenge.

“The Supreme Court is of course supreme and that’s by constitutional design,” said Rebecca Roiphe, a New York Law School professor who studies lawyers’ ethics and the history of the legal profession.

“There are a lot of obstacles to this coming into being and if it did come into being, it wouldn’t be the magic bullet that everybody’s expecting,” she said. “These problems run much deeper.”

Because the Supreme Court’s reputation has suffered recently with all the ethics issues, Gillers said Kagan is justifiably looking for a way to assure the public that the court hears the complaints.

“Her motives are all good,” he said. “They may accomplish something from a public relations point of view, but that’s it.”