Supreme Court struggling to agree on ethics policy, Justice Kagan says

Supreme Court Justice Elena Kagan, shown in May, said Thursday that the justices are struggling to come up with a code of ethics. Sarah L. Voisin/The Washington Post

PORTLAND, Ore. — Justice Elena Kagan said Thursday that the Supreme Court, which has faced intense criticism over lavish, undisclosed free travel by some of her colleagues, is struggling to devise an ethics policy specific to its nine members despite continued discussion.

“It’s not a secret for me to say, we’ve been discussing this issue, and it won’t be a surprise to know that the nine of us have a variety of views about this – and about most things,” Kagan said, drawing laughter from hundreds of lawyers and judges attending a judicial conference. “We’re nine freethinking individuals.”

The criticism stems from expensive trips taken years ago by Justices Clarence Thomas and Samuel A. Alito Jr. underwritten by wealthy business executives and not disclosed in required annual financial reports. The two justices have said they did not believe they needed to disclose the travel. But Senate Democrats have backed legislation to impose disclosure rules on the court as strict as those that apply to members of the House and the Senate.

Kagan was careful not to get ahead of Chief Justice John G. Roberts Jr., who this spring said the court was continuing “to look at things” to demonstrate to the American public that it adheres to the “highest standards of conduct.” But she provided fresh insight into the struggle to craft a policy distinct from the ethics code that applies to other federal judges.

“It’s a hard thing to figure out exactly how we’re alike and how we’re different from other judges – and it’s hard to get as much consensus as we can in the way that we like to do,” Kagan said during a nearly hourlong conversation with bankruptcy Judge Madeleine C. Wanslee of Arizona and attorney Misty Perry Isaacson, chair of the Lawyer Representatives Coordinating Committee of the 9th Circuit, which hosted the conference.

“But I hope that we will make some progress in the area of the kind that the chief justice talked about and maybe put the question of, ‘what can Congress do and not do,’ maybe take that out of play.” Kagan had also told lawmakers four years ago that Roberts was “seriously” studying the issue, but the justices failed to reach agreement. Two new members have joined the court since then.

Kagan was responding to a question about Alito’s assertion, in an interview published last week, that Congress has no authority to impose an ethics policy on the court. He suggested that other justices agree with his view.

While Congress can regulate aspects of the court’s structure and jurisdiction and controls the court’s budget, Kagan said there are limits. Still, she declined to critique the legislation because the measure is under consideration in Congress, and the question could one day come before the court.

Senate Judiciary Committee Chairman Richard J. Durbin, D-Ill., and his Democratic colleagues sent a letter to Roberts on Thursday urging him to ensure that Alito would recuse himself from any case concerning the legislation after his Wall Street Journal interview with an attorney who has a case before the court in the upcoming term.

Roberts has no role in reviewing the recusal decisions his fellow justices make on their own, but the lawmakers said Alito had violated the voluntary ethics guidelines the justices say they follow.

“Justice Alito has already twice violated this admittedly limited Statement on Ethics by ‘creat[ing] an appearance of impropriety in the minds of reasonable members of the public,'” according to the letter to Roberts.

A spokesperson for the court did not immediately respond to a request for comment.

Kagan is one of three liberal justices on a bench with a conservative supermajority of six. In the term that ended one month ago, she was on the losing side in major 6-3 decisions to eliminate race as a factor in college admissions; to invalidate President Biden’s plan to forgive student loan debt, and to favor religious speech over anti-discrimination laws protecting gay rights.

Kagan reiterated some of her criticism following the term that ended in 2022 when the conservative majority eliminated the nationwide right to abortion, overturning Roe v. Wade after nearly 50 years. That decision was followed by a major decline in public approval of the court, which remains at a record low of 40%, according to a new Gallup poll.

In response to a question about declining confidence, Kagan said the court can restore its reputation through restraint and moderation. Justices should not become policymakers, she said, but rather police certain boundaries on policymakers’ activities.

“You create confidence by acting like a court and by doing something that looks recognizably lawlike rather than doing something that looks more political – that looks more like judges are imposing personal preferences,” Kagan said.

“Mostly, it means acting with a certain kind of restraint and acting with a sense that you are not the king of the world,” she added. “You do not get to make policy judgments for the American people.”

The concerns Kagan expressed echoed those in a passionate dissent she read from the bench in June in response to the court’s ruling rejecting Biden’s power to forgive student loan debt. Kagan said the court was making national policy in place of Congress and the executive branch.

“The majority reaches out to decide a matter it has no business deciding,” she wrote. “It blows through a constitutional guardrail intended to keep courts acting like courts.”

She added: “From the first page to the last, today’s opinion departs from the demands of judicial restraint.”

Roberts has defended the court’s legitimacy and responded to the criticism in his majority opinion.

“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” he wrote.

Kagan added Thursday that public confidence in the court is further undermined when it disregards stare decisis – the doctrine of sticking to past decisions unless there is a compelling reason that change is required.

She recalled an opinion the late Justice Antonin Scalia assigned to her in an obscure patent law case that allowed her to emphasize the importance of adhering to precedent even when the court thinks a long-standing decision is wrong.

The opinion centered on “the importance of reliability, the importance of predictability and the importance of courts looking like they are doing law rather than kind of willy-nilly imposing their own preferences as the composition of the court changes,” she said. “It’s really become something I go back to a lot in the way I think about the law and the way I write opinions.”