Justice Kagan’s Ethics Inversion

 Despite the swirl of “ethics” allegations that the Supreme Court’s critics on the left have generated, it isn’t a conflict for a Justice to visit the yacht of a wealthy friend who has no business at the Court. Or to have a spouse who likes a Revolutionary War flag. It’d be nice if Justice Elena Kagan would say as much, rather than fan spurious partisan controversies.

The Justices restated their ethics principles last year by unanimously signing a “code of conduct.” It’s a “good one,” Justice Kagan opined Thursday at a judicial conference in California. But she wants it to have teeth. “Rules usually have enforcement mechanisms,” she said, according to news reports, and the Supreme Court “could and should try to figure out some mechanism for doing this.”

But asking the Justices to pass judgment on one another’s conduct, she said, would be “quite bad.” So Justice Kagan’s suggestion was to have Chief Justice John Roberts appoint some panel of “judges lower down the food chain” to review allegations. She acknowledged “perplexities” in letting subordinate judges review their legal superiors. But she also suggested Justices could end up being vindicated: “Sometimes people accuse us of misconduct where we haven’t engaged in misconduct.”

That should have been the lead, as they say in the news business. Justice Kagan greatly understates the problems of her proposal. Could her panel issue subpoenas to investigate allegations? How would it sanction Justices who enjoy life tenure? Wouldn’t setting up such a system encourage frivolous complaints, filed for partisan PR purposes or to make the process into the punishment?

There is also the constitutional question. The Supreme Court was established by the Constitution, but the lower courts were created by Congress. A lower-court tribunal would therefore subject the High Court to supervision by a creature of Congress, which is constitutionally dubious. The lower-court judges would be under political pressure to rule against this or that Justice.

Justice Kagan’s comments are a serious misjudgment. She seems to think that an external review board would protect the High Court’s reputation, but it would do the opposite. Democratic Sen. Sheldon Whitehouse is a veritable ChatGPT of heated recusal demands to the conservative Justices. Handing this nonsense over to an investigative panel would dignify it. The answer is to refute it.

Justice Kagan is typically sensible, but perhaps the burden of being in the minority on significant cases is weighing on her. Recently Justice Sonia Sotomayor told an audience that she sometimes cries after losing rulings. “I’m more of a wall-slammer,” Justice Kagan said. “Come back to my room and punch, you know.”

She could take a cue from Justice Clarence Thomas’s years in the minority, when he wrote powerfully in dissent but didn’t criticize the Court. She’s only 64 years old, and if Justice Kagan undermines the High Court’s position now, she might regret it later when she finds herself in the majority more often.

https://www.wsj.com/articles/justice-kagans-ethics-inversion-def2ad0f