Supreme Court Justice Elena Kagan expressed optimism during a public appearance at a top law school on Sept. 22 that the high court will adopt a code of conduct for its nine justices.
At the same time, the liberal justice slammed the court’s recent decision striking down President Joe Biden’s student loan forgiveness program and an election law ruling.
During a talk onstage at Notre Dame Law School in Indiana, Justice Kagan—who was appointed in 2010 by President Barack Obama, a Democrat—was vague when asked how the court’s effort to enact internal ethics reform was developing.
It would be “a good thing” if the Supreme Court were to act, she said during the discussion that was moderated by Marcus Cole, dean of the law school.
“I hope we can make progress,” Justice Kagan said.
The Supreme Court has “committed to following certain kinds of ethical rules,” along with gift rules and outside-income rules that other judges follow, she said.
But there’s a “legitimate concern” that the Supreme Court can’t simply adopt the same code of conduct used by lower-ranking judges because the court plays a unique role at the apex of the nation’s legal system, according to Justice Kagan.
“The Supreme Court is an unusual kind of court, and some of the rules do not fit quite as well at the Supreme Court level than they do at the level of lower courts,” the justice said.
“But of course, what we could do is just adapt the code of conduct that the other court systems have in order to reflect those slight or certain differences. And I think it would be a good thing for the court to do that ... [and it would] help in our own compliance with the rules, and it would go far in persuading other people that we were adhering to the highest standards of conduct.”
Justice Kagan declined to point fingers at her colleagues.
“I don’t want to suggest there’s like one holdout,” she said.
The public event came as Democrats in Congress are escalating their verbal attacks on the conservative-leaning Supreme Court.
Conservative Justice Clarence Thomas, in particular, has been under heavy fire from Democrats who accuse him of skirting disclosure rules, of corruption in general, and of being too cozy with wealthy Republicans. However, they’ve been unable to point to any specific court cases in which the justice has misbehaved.
Some Democrat lawmakers want Justice Thomas—who was appointed in 1991 by Republican President George H.W. Bush—to be investigated, while others want him to be impeached and removed from the bench.
Democrats have also been pushing the proposed Supreme Court Ethics, Recusal, and Transparency Act (SCERT) of 2023 (S.359), which was introduced by Sen. Sheldon Whitehouse (D-R.I.).
Mr. Whitehouse’s bill would direct the Supreme Court to issue a code of conduct governing its own members. It would also create a system allowing members of the public to file complaints against justices for violating the code of conduct or for engaging “in conduct that undermines the integrity of the Supreme Court of the United States.”
Student Loan Forgiveness Plan
Justice Kagan also criticized the court over its recent decision striking down President Biden’s student loan forgiveness plan and a decision involving a voting rights law.The court was wrong to strike down the president’s controversial plan to partially forgive student loans, she said during the chat. The plan was unveiled in August 2022 in a move that critics decried as a legally dubious attempt to help Democrats in the November 2022 congressional elections.
The Supreme Court voted 6–3 on June 30 in Biden v. Nebraska to scuttle the program, which the Congressional Budget Office had estimated could have cost $400 billion but which The Wharton School of the University of Pennsylvania had estimated could have blown past $1 trillion.
The court held that the Biden administration couldn’t invoke the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act), which was enacted after the 9/11 terror attacks to provide student loan relief to military service members and their families by canceling debts en masse.
The government’s plan “‘modified’ the cited provisions [in the statute] only in the same sense that the French Revolution ‘modified’ the status of the French nobility—it has abolished them and supplanted them with a new regime entirely,” Chief Justice John Roberts wrote for the majority.
The six conservative justices voted to invalidate the plan, while the three liberal justices—including Justice Kagan—voted to uphold it.
Justice Kagan said that “the case should never have been before the court” because the states that brought it “were complaining about the Biden administration’s loan forgiveness program” and “had not suffered a constitutional injury.”
“We’re not supposed to allow ... policy disagreements to become legal cases,” she said.
The decision was also wrong “substantively,” according to the justice.
The statute involved gave the U.S. Department of Education broad authority to act in emergencies, and the department “had used that authority, just as Congress had expected it might be used,” Justice Kagan said.
“The court was wrong to allow the case in the first place and ... had basically trespassed on the prerogatives of the politically accountable branches to make policy,” she said.
Voting Rights Act
Justice Kagan also discussed her dissent from the majority opinion in Brnovich v. Democratic National Committee, which was issued on July 1, 2021.The court majority held that Arizona’s ban on ballot harvesting and out-of-precinct voting didn’t violate the federal Voting Rights Act.
The court split neatly along ideological and partisan lines, with the six conservative justices nominated by Republican presidents voting to uphold the state rules and the three liberal justices nominated by Democratic presidents—including Justice Kagan—voting to strike them down.
During the Sept. 22 chat, Mr. Cole asked the justice, “Do you think the Voting Rights Act ought to be read more liberally to afford special protections to minority voters?”
Justice Kagan replied, “I don’t think the Voting Rights Act ought to be read more liberally than ... it is actually written.
“What you should do is you should read statutes fairly. That’s the reason why the court got it wrong—it was not because it didn’t put a thumb on the scales.”
The court “didn’t read the Voting Rights Act fairly,” she said.
“It didn’t understand that the Voting Rights Act was one of the most expansive, broad, far-reaching pieces of legislation that Congress has ever passed in this country,” Justice Kagan said. “What it did was give a kind of cramped reading to the Voting Rights Act. It unnaturally restricted it.”
In her dissent, she wrote that the court’s majority was upholding “two election laws from Arizona that discriminate against minority voters.”
Unconstitutional Power Grab
At the time, Mark Brnovich—then the Republican attorney general of Arizona, who argued the case—took issue with Justice Kagan’s assertions.“If you accept the logic of the dissent, then almost any voting integrity measures enacted by any state would be unconstitutional or inconsistent with the Voting Rights Act. It would essentially nationalize all of our elections, which is exactly what the left is trying to do with S1 and HR1,” Mr. Brnovich said, referring to the two versions of the Democrats’ proposed “For the People Act” pending at the time in Congress.
Republicans opposed the legislation, saying it was an unconstitutional power grab that would strip states of the power to run their own elections.
“There was a time not that long ago when even the Democrats recognized that limits on ballot harvesting help protect the integrity of the process.”
The Supreme Court is in recess for its summer break. It resumes oral arguments on Oct. 2.
