Justice Kagan says it’s time for a Supreme Court ethics code | Courthouse News Service
Wednesday, November 29, 2023
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Justice Kagan says it’s time for a Supreme Court ethics code

The Obama appointee championed creating a code of ethics during a wide-ranging interview, also diving into the value of dissents and her take on originalism.

WASHINGTON (CN) — Justice Elena Kagan endorsed creating a code of ethics for the Supreme Court, citing benefits for justices and the public, during an event on Friday at Notre Dame Law School.

“I think it would be a good thing for the court to do that,” the Obama appointee said when discussing the high court adopting its own ethics guidelines. “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.” 

Kagan’s comments came just hours after news broke about Justice Clarence Thomas’ apparent failure to comply with federal disclosure laws — something the justices are bound by. 

Recent comments by Chief Justice John Roberts and Justice Brett Kavanaugh suggest the high court has discussed implementing its own code. Asked if there were any holdouts on the bench, Kagan declined to comment. 

“I don’t want to suggest that there’s one holdout,” Kagan said. “I mean, this is, for various reasons having to deal with certain differences between the Supreme Court and other courts, there are complicated issues here.” 

Kagan said there have been legitimate concerns about the justices adopting the code of ethics that applies to the lower courts.

The answer, she said, is for the justices to come up with a code of their own.

“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,” Kagan said. 

Kagan also discussed the court’s recent rulings, including one in which she penned a fiery dissent. Roberts seemed to admonish Kagan in his majority ruling shooting down President Joe Biden’s student loan plan for her harsh characterization of the conservative majority’s ruling. Kagan acknowledged his view but said she had no plans to start holding back. 

“If you said, I believe that the court has gone beyond the proper role of the judiciary, has trespassed on other institutions prerogatives, has been a court that has not acted like a court — and yet I'm not going to say anything,” Kagan said, “I think that that's what would be disturbing, was pulling your punches in that way.” 

Kagan her strong dissent in the case reflected what she thought about the ruling. 

“I really thought that the court was wrong to allow the case in the first place, and then that the court had basically trespassed on the prerogatives of the politically accountable branches to make policy," Kagan said. "And again, the policy may have been stupid policy, but it wasn't our role to say that."

Roberts wrote that it wasn’t appropriate for dissents to go as far as saying the court was out of bounds. Kagan said that reasoning goes against the purpose of dissents. 

“I just disagree that it's not in the nature of dissents,” Kagan said. “Some of the most important dissents of our country's history have been about why the court has overstepped its role.” 

If Roberts didn't like what Kagan said in her dissent, it wasn't personal, she said.

“It's not a pleasant thing to be told that,” Kagan said. “I mean when I'm told that by other justices, I don't like it either, but that's sort of the nature of the business.” 

The liberal justice also offered a rebuttal to a legal theory favored by her conservative colleagues, commenting on her infamous confirmation hearing comment, “We’re all originalists now.”

She said the quote has been misinterpreted over the years, calling it “that stupid sound bite that has been hanging over my head.”

In reality, Kagan said, her remarks were more complicated than the oft-repeated quote lets on. She is not an originalist in the conventional understanding of the term, she clarified, and feels the Constitution should evolve over time.

“No, I'm not an originalist as some people would define it — but in fact, my view that constitutional meaning evolves is consistent with the actual original understanding of what the document was meant to do and how it was meant to work,” Kagan said. 

Some of what the founders intended is static, Kagan said, like presidential age requirements. However, the idea that the founders never saw the country evolving is untrue. 

“These people, they were speaking for the ages, and they knew it,” Kagan said. “All of these people, in the original founding period and then after the Civil War — I mean, if there was anybody who understood how the world changes, it was those people.” 

Kagan said originalism as it is interpreted in legal circles today, including by some of her colleagues, forces judges to become historians. 

“History is hard, and that kind of constitutional history — trying to figure out what words meant to people, what the words applied to, and what the words didn't — that kind of intellectual history, let's call it, is a pretty impossible task,” Kagan said. 

Originalism has been used in some recent rulings to overturn decades-old precedents. Kagan noted this has recently happened along ideological divides on the conservative supermajority court. 

Kagan said it often appears the court is overturning precedent just because it has the votes to do so. 

“When courts just overrule things willy nilly, it's usually because or sometimes it's because new judges have come on the scene,” Kagan said. “And then they say, 'We never liked this rule, we were not part of creating this rule and we never liked it, so we're going to overturn it.' But when that happens, the court looks as though it's just a matter of who's on the court.” 

Kagan said precedent gives judges humility and gives the public faith in the judiciary. 

“Humility is a good value in the law, that judges don't think that they know everything and can do everything,” Kagan said. 

For the public, stability in law means Americans can know their rights won’t be here one day and gone the next. 

Follow @KelseyReichmann
Categories / Courts, Government, National, Politics

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