SACRAMENTO, California — Justice Elena Kagan on Thursday became the first member of the U.S. Supreme Court to publicly call for strengthening the judiciary. new code of ethics by adding a way to enforce it.
In her first public remarks since the nation’s highest court concluded its term earlier this month, Kagan said she wouldn’t have signed the new rules if she didn’t believe they were good. But having good rules isn’t enough, she said.
“What can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this — this set of rules — doesn’t,” Kagan said at an annual judicial conference held by the 9th Circuit. More than 150 judges, attorneys, court staff and others attended.
It would be difficult to figure out who would enforce the ethics code, though it would likely be other judges, the liberal justice said, adding that another difficult question is what to do when the rules are broken. Kagan suggested that Chief Justice John Roberts could appoint a committee of respected judges to enforce the rules.
Democrats, including President Joe Biden, have renewed talks on Supreme Court reformsincluding possible term limits and a legally enforceable code of ethics.
The court had been considering adopting an ethics code for several years, but the effort took on added urgency after ProPublica reported last year that Judge Clarence Thomas did not disclose this lavish trips he accepted from a major Republican donor. ProPublica also reported on an undisclosed trip to Alaska taken by Justice Samuel Alitoand The Associated Press published stories about both liberal and conservative judges participate in partisan activities.
Earlier this year, Alito Faces New Criticism after The New York Times reported that an upside-down American flag, a symbol associated with former President Donald Trump’s false claims of election fraud, was hanging outside his home. Alito said he had nothing to do with the flag being upside down.
Public confidence in the court has declined sharply in recent years. In June, a survey was conducted among The Associated Press-NORC Center for Public Affairs Research Research has found that 4 in 10 adults in the US have little confidence in judges and 70% believe they are guided by their own ideology rather than acting as neutral arbiters.
Kagan, who was nominated to the Supreme Court in 2010 by then-President Barack Obama, said Thursday that a way to enforce the ethics code would also protect judges if they are wrongly accused of misconduct.
“Both in terms of enforcing the rules against people who have broken them, and in terms of protecting people who have not broken them – I think such a system would make sense,” she said.
The Supreme Court has ruled on a range of controversial issues this term, from homelessness to abortion access to presidential immunity. Kagan was in the minority when she opposed decisions clearing the way for States to enforce bans on homeless camps and former presidents make largely immune from criminal prosecution of official acts. Kagan joined the court’s eight other justices in maintaining access to mifepristone, an abortion drug.
Kagan has spoken in the past about how the court is losing trust in the eyes of the public. She said after the court overturned Roe v. Wade in 2022 that judges could lose their legitimacy if they are seen as ‘an extension of the political process or if they impose their own personal preferences’.
___
Mark Sherman, an Associated Press editor in Washington, contributed to this report.
___
Austin is a corps member for The Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on under-covered issues. Follow Austin on X: @sophieadanna
