A Critique of Justice Kagan's Supreme Court Ethics Reform Proposal (original) (raw)

Over the summer, Justice Elena Kagan offered support for an ethics code for Supreme Court justices and suggested possible ways such a code could be enforced, such as through a panel of lower court judges. She reiterated this position earlier this month.

This proposal has several fundamental problems. For starters, it would give a future chief justice extraordinary power over his or her colleagues—power that some future, malevolent chief justice could easily abuse. By selecting the lower court judges who stand in judgment of the justices, the chief justice could put a thumb on the scale of those determinations. Gaining an upper hand on an intractable colleague would be as easy as stacking the ethics panel with that colleague's antagonists. We can certainly hope no judge would abuse such authority. But to borrow from the old adage—if judges were angels, no ethics panel would be necessary.

And consider this dynamic in the context of a problem facing the Court right now: leaks of confidential information. Last weekend, the New York Times printed an exposé on the most recent Supreme Court term, replete with details of internal memos, the justices' deliberations, and more. We have no idea who leaked this sensitive information to the _Times_—and particularly whether any justice was involved—but the leaks appear designed to undermine Chief Justice John Roberts and cast an unflattering light on the Court's majority in certain important decisions. The judiciary's ethical canons flatly prohibit politically motivated leaks of confidential judicial deliberations. Canon 4(D)(5) states: "A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge's official duties." Presumably, a campaign to influence the chief justice and his colleagues by leaking "nonpublic information" to the New York Times would meet that description.

It's a fair question, then, how the proposed ethics panel would address this prima facie ethical violation at the Court. Someone at the Supreme Court provided confidential information to reporters. Would the chief justice's hand-selected panel of lower court judges conduct a leak investigation at the Court? Would the ethics panel have compulsory process over Court staff? What about the justices themselves? Could the ethics panel demand internal documents from the Court? Could the ethics panel sanction a law clerk, staff member, or justice who refuses to participate in its inquiry? These questions would arise immediately if such an institution existed.

It's also unclear how the proposed ethics panel would enforce its determinations. Allowing lower court judges to force the recusal of specific justices is a recipe for disaster: it would create the real prospect of an obscure judicial panel changing the outcome of an important Supreme Court case. Or perhaps the panel could go further and suspend offending justices? That would be even more calamitous, enabling the chief justice's lower court appointees to change the composition of the Court without regard to life tenure, presidential appointment, or Senate confirmation.

Russell Wheeler of the Brookings Institute offers a more sympathetic assessment of Kagan's proposal, but also acknowledges there are serious questions about how such a program would be implemented.

Is any such set of reforms necessary? Congress retains the authority to discipline justices that fail to engage in "good behavior" through impeachment—and Congress could well enact or endorse a set of standards, the violation of which, would justify initiating an impeachment inquiry. The problem, of course, is that impeachment requires a broader political consensus about alleged misconduct that currently exists.