Justice Kagan backs code of ethics for Supreme Court

Supreme Court Justice Elena Kagan said a code of ethics for the high court would be a “good thing.”

The Obama appointee noted during remarks Friday at the University of Notre Dame in Indiana that she hopes the Supreme Court adopts a code of conduct soon.

It was the most pointed comment from a justice advocating for firm rules for the bench as Senate Democrats propose legislation that would force the Supreme Court to adopt ethics rules.

“What we could do is just adapt the code of conduct that the other court systems have,” Justice Kagan said, referencing lower courts’ rules that govern judicial conduct. “And I think it would be a good thing for the court to do that.”

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

This past summer, Justice Brett M. Kavanaugh suggested the court would take “concrete steps” to address the ethics concerns. But Justice Samuel A. Alito Jr., in an interview published by The Wall Street Journal, pushed back, suggesting any legislation requiring the justices to set some sort of rules for the high court would run afoul of the separation of powers.

The justices’ debate over whether they should have to follow an ethical code is spilling into the public after media outlets — mainly ProPublica — have published reports of justices taking luxury vacations with billionaires.

ProPublica has mostly targeted Justice Clarence Thomas with accusations about reporting gifts and recusing himself from cases. It reported that Harlan Crow, a GOP megadonor, paid private school tuition at Hidden Lake Academy and Randolph-Macon Academy for Justice Thomas’ great-nephew, whom the justice took in to raise at age 6.

The tuition total could have cost more than $150,000, according to ProPublica. Justice Thomas previously did not disclose the payments in his financial disclosure forms, and the news outlet suggested that runs afoul of ethical standards required of a federal judge.

ProPublica also reported in April that Justice Thomas did not disclose that he took multiple luxury vacations with Mr. Crow or that Mr. Crow bought his mother’s home while she continued to reside there.

The New York Times followed with a report critical of Justice Thomas and other Republican appointees collecting generous salaries to teach courses at George Mason University’s Antonin Scalia School of Law.

Justice Thomas has defended his friendship with Mr. Crow and said he consulted with colleagues about disclosure requirements and didn’t skirt any rules.

In an interview published recently by The Atlantic, Mr. Crow denied talking to Justice Thomas about the high court or matters pending before it. He also said the purchase of his mother’s home was a fair-market transaction.

“I don’t see the foot fault,” he said.

ProPublica also has been critical of Justice Alito for trips he’s made.

Senate Judiciary Committee Democrats held hearings over the summer on ethics concerns regarding the justices, saying they would pass legislation to impose rules on the justices. They invited Chief Justice John G. Roberts Jr. to testify, but he declined.

The high court doesn’t have a mandatory code of ethics, even though lower court judges are expected to avoid impropriety or do business with anyone who may come before the bench.

Chief Justice Roberts has said the high court has generally followed the Judicial Conferences’ Code of Ethics binding on lower courts — but not the Supreme Court — since 1991.

He said all justices must file disclosures reviewed by the Judicial Conference Committee on Financial Disclosure and follow what lower courts do with recusals. But he noted that the system is flexible, given the composition of the high court.

He also said the justices’ security has faced increased threats. He said they sometimes do not disclose justices’ travel arrangements for security reasons.

Senate Republicans have dismissed the accusations of ethics concerns and said it’s a political attempt by Democrats to delegitimize the conservative-majority Supreme Court.

In a party-line vote in July, Senate Democrats advanced legislation through the Judiciary Committee that would make the court develop a code of ethics and a system to police the justices’ adherence. The justices would be prodded to better explain their decisions on whether to recuse themselves from hearing certain cases.

Given the close division of power in the Senate and the Republicans’ control of the House, Sen. John Kennedy, Louisiana Republican, said the Democrats’ bill is “as dead as fried chicken” if it were to get a vote on the Senate floor.