US Supreme Court Justices Are ‘Not Imperial,’ Kagan Says (2)

Congress has some powers over the US Supreme Court but lawmakers can’t do anything they want when it comes to regulating it, Justice Elena Kagan said.

In an appearance at the Ninth Circuit Judicial Conference in Portland, Oregon, on Thursday, Kagan weighed in on the controversy fueled by reports of alleged ethics shortfalls by justices on both sides of the ideological divide, especially Clarence Thomas.

Kagan, at her appearance, responded to a question about Justice Samuel Alito’s comments that Congress has no authority to impose a binding ethics code on the court.

“It can’t do anything it wants,” Kagan said, especially in taking action that “effectively prevented” the justices from fulfilling their responsibilities.

But Congress does have authority to regulate various things, she said, referencing some past changes. Lawmakers, for instance, approve the court’s budget, which includes security.

“We’re not imperial,” Kagan said, noting that Congress should “have the right” to consider what it believes is Constitutional.

“If it comes back with something, we’ll have the chance to say something about it,” Kagan said.

Thomas Trips

Supreme Court ethics gained new attention this year following ProPublica reports about Thomas and luxury vacations, real estate deals, and school tuition payments involving billionaire and GOP megadonor Harlan Crow that weren’t reported on financial disclosures.

In comments to the Wall Street Journal published on July 28, Alito said Democratic-led efforts to impose an ethics standard on the court around financial and other disclosures and recusal practices was out of bounds.

“Congress did not create the Supreme Court,” Alito said. “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.”

Alito, a member of the court’s conservative majority, said he was speaking only for himself but noted that he thinks “it’s something we have all thought about.”

Self-Imposed

Kagan, 63, one of court’s three liberals, affirmed that the justices are discussing self-imposed ethics rules. “It won’t be a surprise to know that the nine of us have a variety of views,” she said.

Chief Justice John Roberts has said he’s committed to the highest ethical standards and that the justices follow ethics laws for the judiciary and should continue to police themselves. He stresses that any congressional mandate would violate separation of powers.

Under pressure, the justices agreed this year to a new voluntary disclosure policy around hospitality.

“We’ve also made clear that we are guided by the standard code of conduct that applies to all other federal judges,” although some practices like recusal are different, Kagan said.

Progressives deem insufficient any action falling short of a formal code similar to what applies to lower court judges that is binding for the justices, not the current measures the court says it follows voluntarily. Proponents of a formal ethics code also say one is necessary to quell public doubt about the court’s legitimacy.

—With assistance from Kimberly Robinson