Supreme Court Justice Elena Kagan on July 25 called for enforcement of an ethics code adopted in 2023 by justices.
In her first public remarks since the nation’s highest court wrapped up its term earlier this month, Justice Kagan said she wouldn’t have signed onto the new rules if she didn’t believe they were good. But having good rules is not enough, she said, as she became the first justice to call for strengthening the code.
“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,” Justice Kagan said at an annual judicial conference held by the Ninth Circuit Judicial Conference.
It would be difficult to figure out who should enforce the ethics code, though it should probably be other judges, according to Justice Kagan. She said that another difficult question is what should happen if the rules are broken. The justice proposed that Chief Justice John Roberts could appoint a committee of respected judges to enforce the rules.
More than 150 judges, attorneys, court personnel, and others also heard the justice say that having a way to enforce the ethics code would also protect justices if they are wrongly accused of misconduct.
“Both in terms of enforcing the rules against people who have violated them but also in protecting people who haven’t violated them—I think a system like that would make sense,” she said.
The code includes no method of enforcement or discussion of sanctions for violations.
When the code was announced, some lawmakers criticized the lack of an enforcement mechanism. Several bills have been introduced to add enforcement to the code, but those bills have not passed either chamber of Congress.
A commission convened by the president in 2021 said that it might be prudent for a code of conduct to be introduced for justices, either by justices themselves or by Congress. The commission also noted that, unlike other federal judges, justices are not subject to sanctions for certain conduct.
While extending the Judicial Conduct and Disability Act to justices is one option, that would lead to lower court judges evaluating justices. A more preferable method would be to adopt an internal disciplinary system, the commission said, featuring the chief justice reviewing complaints lodged against other justices.
“The complaint could be referred to the entire court or a subset of Justices. How such a procedure might affect the overall role of the chief justice and the working relationships of the justices is not clear, although the development of deep personal rifts seems at least possible as a result. And again, the sanction of removal from a case could have broad repercussions for the court, litigants, and the public,” the commission said.
“Some might conclude that the adoption of a code of conduct would not be beneficial without an additional mechanism for receiving and reviewing complaints,” it added. “However, experience in other contexts suggests that the adoption of an advisory code would be a positive step on its own, even absent binding sanctions.”
