WASHINGTON (CN) – At a hearing Thursday on the high court’s budget, Justice Elena Kagan told lawmakers that Chief Justice John Roberts is looking into the possibility of drafting a code of conduct that applies only to Supreme Court justices.
“That is something that we have not discussed as a conference yet and that has pros and cons I’m sure, but it’s something that’s being thought very seriously about,” Kagan told a House subcommittee.
Supreme Court justices are currently not legally bound by the same code of conduct as all other federal judges, though a bill the House has been debating this week would bring the justices under the code’s purview.
As Justice Samuel Alito explained Thursday, while the justices work to follow the ethical rules even without being bound by them, there are some constitutional concerns about formally putting them under the same code as lower court judges.
“I think that it is inconsistent with the constitutional structure for lower court judges to be reviewing things done by Supreme Court justices for compliance with ethical rules,” Alito said.
Alito and Kagan appeared before a House Appropriations subcommittee to present the Supreme Court’s budget request, marking the first time in four years that justices appeared to formally present the request to Congress.
The two justices’ first trip across Capitol Hill to present their funding request to lawmakers got off to an inauspicious start, with Alito breaking a glass of water at the witness table during opening remarks by Representative Mike Quigley, D-Ill.
“I am sure when I get back to the court I will hear immediately from either Justice [Anthony] Kennedy or Justice [Stephen] Breyer, or perhaps both of them, that in all the times when they appeared here, they never broke any glass or spilled water,” Alito said after the incident.
The justices’ request for a $3.4 million increase over this year’s funding was the reason for the hearing, but most of the discussion Thursday was about issues other than money. Lawmakers were particularly interested in efforts the court can undertake to improve its transparency.
Alito hailed several changes the court has already implemented, including making its docket and filings publicly available online to make it easier for people to interact with the court.
But lawmakers pressed the justices on why they can’t open the court’s oral arguments to broadcast cameras. Quigley noted Congress conducts its proceedings under the near-constant watch of cameras and wondered why justices cannot do the same.
“We flub up a lot here, but we’re on C-SPAN, and so our mistakes are live,” Quigley said.
But neither justice agreed the high court should welcome cameras into the courtroom. Alito said he used to be in favor of cameras in the court when he was on the Third Circuit, but said he changed his mind after reaching the Supreme Court.
Both justices expressed concerns that lawyers arguing before a Supreme Court that featured cameras might change their behavior in order to get on television. Alito said this could hamper the court’s main job of deciding cases.
“I came to see and I do believe that allowing the arguments to be televised would undermine their value to us as a step in the decision-making process,” Alito said. “I think lawyers would find it irresistible to try to put in a little sound bite in the hope of being that evening on CNN or Fox or MSNBC or one of the broadcast networks.”
Kagan also said she worries that clips could be taken out of context to make it seem like a justice who is playing devil’s advocate from the bench to better understand an argument believes something he or she does not actually believe.
Lawmakers also asked Alito and Kagan about preventing sexual harassment on the high court, an issue both justices said the court is taking seriously.
“I can assure you that all of the justices are aware of this potential problem and if it were to come to our attention that there were any problems along these lines involving anybody who works across in the Supreme Court building, we would not sit back, we would take action that’s appropriate,” Alito said.