Justice Elena Kagan said Friday that she thought it would be a “good thing” for the Supreme Court to adapt some version of a code of ethics that governs lower court judges and that she hoped the justices would make progress on the issue soon.
The ethics comments are the most specific to date from a sitting justice after an array of stories in recent months alleging that some members of the court are skirting ethics standards, and as Senate Democrats are pushing legislation that would require the high court to adopt a binding code of conduct.
They came as part of wide-ranging remarks that Kagan delivered at the University of Notre Dame in Indiana – where she also explained her side of a dispute of sorts with Chief Justice John Roberts after the majority of the court invalidated President Joe Biden’s student loan forgiveness program last term.
Kagan’s speech came just hours after ProPublica published another story raising questions about Justice Clarence Thomas, this time over his attendance at a 2018 private dinner during a donor summit hosted by the Koch network, the political organization founded by libertarian billionaires Charles and David Koch. Staffers told the outlet that the justice was brought in with the hope that such access would “encourage donors to continue giving.”
Earlier in the summer, Justice Brett Kavanaugh also said he hoped the court would soon take “concrete steps” on ethics reform. And Kagan noted that Roberts gave a speech last spring in which he said the Supreme Court had to be held to the highest standards of conduct.
“That has to be right,” she said Friday.
The lower courts, Kagan explained, already have an extensive code of ethics in place, but the justices comply with only some aspects voluntarily. She said there is a “legitimate concern” that the Supreme Court is unusual in certain respects and that some of the rules that apply to the lower courts “do not fit quite as well” at the high court’s level.
“But, of course, what we could do is just adapt the code of conduct that the other court systems have in order to reflect” certain differences, Kagan said, adding: “And I think it would be a good thing for the court to do that.”
“It would help in our own compliance with the rules and it would – I think – go far in persuading other people that we were adhering to the highest standards of conduct,” she said.
Asked whether she would reveal “who is the holdup” on the high court, Kagan laughed.
“No, no,” she said. “What goes on in the conference room goes on in the conference room.”
Kagan also said she didn’t want to suggest there was just one holdout. “There are complicated issues here,” she said, adding that there are good-faith disagreements and concerns.
“There are some things to be worked out, and I hope we can get them worked out,” she said.
On Roberts and dissents
Kagan was also asked by the moderator, Notre Dame Law School Dean G. Marcus Cole, about an unusual exchange she had with Roberts last term over Biden’s student loan forgiveness plan.
Writing for a 6-3 majority, Roberts struck down the program, triggering a fiery dissent from Kagan. Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, wrote that “in every respect, the Court today exceeds its proper limited role in our Nation’s governance.”
At the very end of his majority opinion, Roberts briefly digressed from the case at hand and appeared to address the dissent, noting that it had become a “disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of government.”
Noting her disagreement, Roberts took the occasion to write, “We do not mistake this plainly heartfelt disagreement for disparagement.”
On Friday, Cole asked Kagan for her thoughts upon reading Roberts’ words.
Kagan joked at first, saying it would be difficult to provide a full answer without the chief in attendance. But then she said she disagreed with part of Roberts’ sentiment but agreed with another.
She said that she didn’t think it was “disturbing at all” for dissenters to speak out when they believe the majority has gone beyond its proper role. It would be disturbing, she said, if the dissent pulled its punches.
But she acknowledged that her dissent had been strong, and she agreed with the chief that it should not be taken personally.
“I admire the chief justice enormously,” Kagan said. “I admire him as a person, as a judge.
“I admire him as the institutional leader of the court,” she added
Divisions on the court do not always fall along particular ideological lines, she said Friday, suggesting that commentator previously overreacted in a case about copyright infringement concerning the late Andy Warhol’s art.
She noted that she and liberal Justice Sotomayor fell on opposite sides in the dispute and that their opinions highlighted their sharp disagreements.
The reaction, she suggested, was akin to “Ooh, let’s watch them catfight or something like that.”
Kagan reiterated her complaint that the conservative majority is moving too quickly to overturn precedent, although she did not go into depth about any particular case.
“I’m hopeful that we won’t have that year after year, case after case,” she said. “Adherence to precedent is important because it prevents the court from looking like a political actor.
“People have no right to expect that they are going to agree with all the decisions that courts make,” she said. “But people do want courts – and have a right to expect that courts act like courts – and that (they) don’t look like other political actors.”
Concerning the overruling of precedent when new justices arrive, she said: “When the court kind of goes back and forth, it makes people think that courts are just sort of making it up on the fly, and that’s an extremely damaging thing for the judicial system and I think for our country.”
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