Kagan: Need Way to Enforce Ethics Code 07/26 06:21

   

   SACRAMENTO, Calif. (AP) -- Justice Elena Kagan on Thursday became the first 
member of the U.S. Supreme Court to call publicly for beefing up its new ethics 
code by adding a way to enforce it.

   In her first public remarks since the nation's highest court wrapped up its 
term earlier this month, Kagan said she wouldn't have signed onto the new rules 
if she didn't believe they were good. But having good rules is not enough, she 
said.

   "The thing that can be criticized is, you know, rules usually have 
enforcement mechanisms attached to them, and this one -- this set of rules -- 
does not," Kagan said at an annual judicial conference held by the 9th Circuit. 
More than 150 judges, attorneys, court personnel and others attended.

   It would be difficult to figure out who should enforce the ethics code, 
though it should probably be other judges, the liberal justice said, adding 
that another difficult question is what should happen if the rules are broken. 
Kagan proposed that Chief Justice John Roberts could appoint a committee of 
respected judges to enforce the rules.

   Democrats, including President Joe Biden, have renewed talk of Supreme Court 
reforms, including possible term limits and an ethics code enforceable by law.

   The court had been considering adopting an ethics code for several years, 
but the effort took on added urgency after ProPublica reported last year that 
Justice Clarence Thomas did not disclose luxury trips he accepted from a major 
Republican donor. ProPublica also reported on an undisclosed trip to Alaska 
taken by Justice Samuel Alito, and The Associated Press published stories on 
both liberal and conservative justices engaging in partisan activity.

   Earlier this year, Alito was again criticized after The New York Times 
reported that an upside-down American flag, a symbol associated with former 
President Donald Trump's false claims of election fraud, was displayed outside 
his home. Alito said he had no involvement in the flag being flown upside down.

   Public confidence in the court has slipped sharply in recent years. In June, 
a survey for The Associated Press-NORC Center for Public Affairs Research found 
that 4 in 10 U.S. adults have hardly any confidence in the justices and 70% 
believe they are more likely to be guided by their own ideology rather than 
serving as neutral arbiters.

   Kagan, who was nominated to the Supreme Court in 2010 by then-President 
Barack Obama, said Thursday that having a way to enforce the ethics code would 
also protect justices if they are wrongly accused of misconduct.

   "Both in terms of enforcing the rules against people who have violated them 
but also in protecting people who haven't violated them -- I think a system 
like that would make sense," she said.

   Kagan also weighed in on other issues. She said justices should generally 
avoid issuing separate opinions on cases when they agree on the overall 
outcome, which could confuse lower courts. She highlighted the importance as 
justices of respecting precedent. And she said justices should not "use 
individual cases as vehicles to advance some broader agenda."

   The Supreme Court ruled on a range of contentious issues this term, from 
homelessness to abortion access to presidential immunity. Kagan was in the 
minority as she opposed decisions to clear the way for states to enforce 
homeless encampment bans and make former presidents broadly immune from 
criminal prosecution of official acts. Kagan joined with the court's eight 
other justices in preserving access to mifepristone, an abortion medication.

   Kagan has spoken in the past about how the court is losing trust in the eyes 
of the public. She said after the court overturned Roe v. Wade in 2022 that 
judges could lose legitimacy if they're seen as "an extension of the political 
process or when they're imposing their own personal preferences."

   Toward the beginning of her remarks Thursday, Kagan reflected on a time 
decades ago when the public held the Supreme Court in higher regard. The late 
Justice Sandra Day O'Connor was serving on the high court -- the first woman in 
history to do so.

   "Because of her decision-making in that time, I mean, I think people 
generally had a deep reservoir of respect for the court," Kagan said. "What 
better thing can you say about a judge who's put in this incredibly important 
decision-making position than that? That she left the court a better, more 
respected institution than she found it."