Justice Elena Kagan stands by idea for enforcing Supreme Court ethics code

NEW YORK − Supreme Court Justice Elena Kagan on Monday stuck by her recent suggestion of how to enforce the high court’s new ethics code

“It seems like a good idea in terms of ensuring that we comply with our own code of conduct going forward in the future,” she said of using lower court judges to assess whether a justice should recuse herself from a case or shouldn’t have accepted a gift. “It seems like a good idea in terms of ensuring that people have confidence that we're doing exactly that.”

But Kagan, one of the court’s three liberal justices, declined to engage with the charge from the leader of a religious-rights group that she’s being “somewhat treasonous.”

“I don’t want to dignify it any further,” Kagan said at an event at New York University School of Law when asked about the criticism from Kelly Shackelford, president and CEO of First Liberty Institute.

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Shackelford made that comment during a July call with his group’s top donors, ProPublica recently reported . He also shared a gushing email from Ginni Thomas, the wife of Justice Clarence Thomas, praising First Liberty’s opposition to proposals to reform the Supreme Court .

Those proposals include term limits and an enforcement mechanism for the ethics code the Supreme Court adopted last year. The code followed a series of stories detailing   lavish travel Thomas  accepted from billionaire GOP donor Harlan Crow, as well as revelations that Justice Samuel Alito in 2008  flew to Alaska  for a fishing trip on a private jet belonging to a hedge fund manager who repeatedly brought cases before the high court.

Since then, critics have also charged that Thomas should have recused himself from cases involving former President Donald Trump because of his wife's activism supporting false claims the 2020 election was stolen. Alito resisted calls that he recuse himself from deciding whether Trump should be immune from criminal election interference charges after his wife embraced a flag connected with those false claims.

The code, among other things, says justices can accept "reasonable compensation and reimbursement" for travel "if the source of the payments does not give the appearance of influencing the justice’s official duties or otherwise appear improper."

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It also encourages justices to recuse from a pending case if they have "a personal bias or prejudice concerning a party."

But the rules are self-enforcing.

Kagan, when asked in July about the lack of an outside review, said the justices “could and should try to figure out some mechanism for doing this.”

She suggested Chief Justice John Roberts could appoint a panel of lower court judges who could assess complaints made against the justices.

Since offering that option, Kagan said Monday, she’s heard two different arguments for why it wouldn’t work.

Some say it would increase the number of baseless charges lobbed at the justices – a criticism Kagan said “confuses me” because it creates a mechanism to say “that’s a frivolous charge.”

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Others are concerned that lower court judges  − unless they’re retired – might be worried about offending a justice who ranks above them and reviews their case rulings.

“I just think they’re not so afraid of us,” she said. “There are plenty of judges around this country who would do a task like that in a very fair minded and serious way.”

Kagan made her remarks in response to questions from Melissa Murray, who teaches at New York University School of Law and co-hosts the “Strict Scrutiny” podcast .

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Asked about the fact that four of the court’s nine justices are now female, Kagan said she can think of only once case – which she didn’t name – where that made a difference.

But, Kagan said, the reason gender balance is important is not because it determines how cases are decided but because it sends a great message about women’s participation in society.

She estimated that the female justices speak more during oral arguments than the men.

“We’re not,” she said, “shrinking violets.”

This article originally appeared on USA TODAY: Why Justice Elena Kagan wants a tough Supreme Court ethics code