Justice Elena Kagan on Monday dismissed claims that her proposed idea would be ineffective, detailing how the Supreme Court’s new ethics code could be improved if it had an enforcement mechanism.
The court has been under pressure over allegations of ethics violations, mostly directed at conservative justices Clarence Thomas and Samuel Alito. released a new code last year, but was immediately criticized for having no way to enforce it.
Kagan, a member of the court’s liberal minority, called for a panel of lower court judges appointed by Chief Justice John Roberts to handle the lawsuits against the judges.
He said in a speech at New York University School of Law that the panel could weed out frivolous claims while rigorously investigating meritorious ones.
“It seems like a good idea in terms of ensuring that we follow our own code of conduct in the future. It seems like a good idea in terms of making sure people believe that we’re doing just that.” he said.
But Kagan’s recommendation to create a panel also faced criticism. Some critics suggested that his proposed enforcement mechanism could lead to frivolous lawsuits, while others suggested that juries would be too deferential to justice.
On the first point, Kagan noted in her speech Monday that there are already too many accusations against judges that often go unsolved. Juries can “separate the wheat from the chaff,” quickly dismissing frivolous claims.
“I mean, there’s a lot of opportunity now to make unfounded accusations about what justices do and don’t do. So I don’t really see how this is going to increase that,” he said.
As for lower court justices pulling their punches, Kagan appeared concerned that it might happen, saying that justices “aren’t as afraid of us” as people think.
“I think there are a lot of judges in this country who can handle a case like this very fairly and rigorously,” he said.
Kagan was speaking only for herself, and it remains to be seen whether any of her colleagues will support the idea. He made clear that he did not cite anything Congress could do about the matter, which would raise legal questions that the court might be asked to address.
One of his liberal colleagues, Justice Ketanji Brown Jackson, said earlier this month that he would. is open to the idea it adopted an enforceable code of ethics, though it stopped short of endorsing a specific plan to do so.