Justice Elena Kagan has made a compelling call for the establishment of an enforceable ethics code for the U.S. Supreme Court. Speaking at the Ninth Circuit’s Judicial Conference, Justice Kagan acknowledged the merits of the ethics code adopted by the Supreme Court last year but highlighted a critical flaw: it lacks an enforcement mechanism. Kagan emphasized the necessity of a structured enforcement process, stating, “I think that the thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them. And this one, this set of rules does not.” More details on her remarks can be found here.
Justice Kagan did not shy away from the complexity of developing such a mechanism. She noted the challenges of internal enforcement among justices, expressing concerns about judges policing their peers. Instead, she proposed that a committee of highly respected judges, appointed by the Chief Justice, could be a viable solution. This proposal envisions a body capable of upholding the code without internal conflicts of interest.
Kagan’s push for robust ethics reform has drawn support from various quarters. Gabe Roth from Fix the Court echoed Kagan’s concerns, stating that for any Supreme Court ethics framework to be effective, external enforcement is essential. Roth suggested that involving lower court judges and possibly retired justices in enforcing the code could provide the necessary oversight. His detailed comments can be found here.
Justice Kagan has been a vocal advocate for ethics reforms within the Court, repeatedly calling for measures that bolster public confidence and accountability. Her commitment to this cause comes at a time when the Supreme Court’s approval ratings and perceived legitimacy are under scrutiny, compounded by a series of ethics controversies involving other justices.
As the debate around Supreme Court ethics continues, it remains to be seen whether Kagan’s ideas will gain traction among her peers and lead to a more enforceable and transparent judicial code of conduct.