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.
Claire Rush / AP
Speaking in Portland Thursday, U.S. Supreme Court Justice Elena Kagan said her colleagues on the court are actively discussing whether to impose their own ethical code of conduct.
“It won’t be a surprise to know that the nine of us have a variety of views about this,” Kagan said. “We’re nine free-thinking individuals.”
For years, the court largely regulated itself, though lower court judges must follow a code of conduct that avoids even the appearance of conflicts of interest. Earlier this year, the federal judiciary revised its ethics policy to incorporate non-business travel. That revision includes the nine justices.
“We could decide to adopt a code of conduct that either follows or decides in certain instances not to follow the standard code of conduct,” Kagan said.
Reporting by ProPublica and other news organizations this spring raised serious ethical questions about some members of the court. Namely, Justices Clarence Thomas and Samuel Alito took lavish and exclusive trips paid for by wealthy Republican mega donors, one of whom had business before the court. Neither Thomas nor Alito disclosed those trips.
Since then, Democrats in Congress have pushed legislation that would require the nation’s high court to adopt and enforce ethical rules.
Last week, The Wall Street Journal’s editorial page published an interview with Alito, where he declared Congress can’t regulate the court.
“I know this is a controversial view, but I’m willing to say it,” Alito told the Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Kagan’s remarks were in response to a question about Alito’s interview. She was in Portland speaking at the Ninth Circuit’s Judicial Conference. While Kagan said she read the article, she also said that it was unclear to her exactly what the question was that Alito was answering based on how the article was written, indicating she wasn’t directly responding to Alito’s interview.
“Of course, Congress can regulate various aspects of what the Supreme Court does,” Kagan said.
“Our whole system is one of checks and balances,” she said. “It just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else. I mean, we’re not imperial and we too too are a part of a checking and balancing system.”
At the same time, Congress cannot do anything it wants, Kagan said.
The justice also addressed public confidence and perception of the Supreme Court, one that’s been marked not only by ethics scandals, but also recent opinions that have major shifts on American life: abortion, firearms, climate policy and affirmative action.
“You create confidence by acting like a court and by doing something that looks recognizably lawlike, rather than doing something that looks more political or that looks more as though you’re imposing personal preference,” Kagan said.
Kagan said she prefers opinions from the court that achieve less, but offer greater consensus. And, she said, courts have an important, but also “appropriately limited role” in a democracy.
“Acting with a certain kind of restraint and acting with a sense that you are not a king of the world and that you do not get to make policy judgments for the American people,” is the role of the court, Kagan said.