Kagan says ‘good faith disagreements’ holding up ethics code

Justice Elena Kagan said Friday it would “be a good thing” for the Supreme Court to adopt a binding code of ethics, but she acknowledged “complicated issues” that have held up the nine justices from reaching an agreement in their closed-door conferences.

“I think it would be a good thing for the court to do that,” Kagan, a member of the high court’s liberal wing, said during an appearance at Notre Dame Law School. 

“It would help in our own compliance with the rules,” she continued. “And it would, I think, go far in persuading other people that we were adhering to the highest standards of conduct.”

Democrats and judicial watchdog groups have renewed a push for the justices to adopt a binding ethics code after a series of ProPublica stories detailing luxury trips, a real estate deal and gifts conservative Justice Clarence Thomas accepted from Republican megadonor and real-estate magnate Harlan Crow. Thomas has denied any intentional wrongdoing.

The scrutiny has only grown with a subsequent ProPublica report about an Alaska fishing trip conservative Justice Samuel Alito accepted and an Associated Press report detailing how liberal Justice Sonia Sotomayor leveraged a court employee to help her sell books. Earlier on Friday, a new ProPublica report also surfaced about Thomas’s attendance at Koch network donor events.

When asked at Notre Dame which justice was the holdout on reaching an ethics code agreement, Kagan declined to say.

“What goes on in the conference room goes on in the conference room,” she said. “And I don’t want to suggest that there’s like one holdout.”

“I mean, this is, for various reasons, having to do with certain differences between the Supreme Court and other courts, and they are complicated issues here,” Kagan continued. “There are totally good faith disagreements or concerns, if you will. There are some things to be worked out.”

The code of conduct in place for lower federal judges does not apply to the Supreme Court, though the justices have said they consult the guidance and voluntarily follow rules on gifts and other regulations.

Legal ethics experts have pointed to key differences at the Supreme Court, including recusals. When a judge on a lower court recuses from a case, they are replaced by another judge from the bench. But, a Supreme Court recusal changes the total number of votes.

Kagan isn’t the only justice who has expressed a desire to improve ethics standards at the court.

Chief Justice John Roberts in May insisted he is committed to finding ways to “give practical effect” to following the highest ethical standards, and conservative Justice Brett Kavanaugh recently said he is “hopeful” the court can soon take “concrete steps” on ethics.

“I hope that that’s true,” Kagan said Friday of Kavanaugh’s suggested timing.

Democrats on the Senate Judiciary Committee this summer took things into their own hands, arguing the justices cannot not be trusted to police themselves as the senators advanced a bill that would require the high court to adopt its own binding code of ethics. 

But Republicans, who have also pointed to ethics woes of former liberal justices, have portrayed the push as an attempt to tear down the high court’s conservative majority, giving the proposal slim odds of passage.

Last month, Kagan declined to take a position on Democrats’ specific proposal. But she pushed back on Alito’s recent comments that Congress could not regulate the Supreme Court, saying the court was still subject to checks and balances.