Justice Elena Kagan recently provided a critical description of the Supreme Court, emphasizing the importance of an ethical code of conduct for herself and her colleagues. Her remarks were not only significant in terms of their content but also in terms of their delivery.
However, Justice Samuel A. Alito Jr. contradicted the idea that lawmakers have the authority to impose ethical standards on the Supreme Court. He argued that Congress did not create the Supreme Court and therefore lacks the power to regulate it.
While Justice Alito’s statement is technically incorrect, as Congress does have some oversight over the court, there is room for interpretation. Congress can determine the court’s budget and the number of seats on the bench, and it can outline the court’s appellate jurisdiction. Additionally, there are recusal and financial disclosure requirements for lower-court federal judges that are set by Congress, which the Supreme Court justices claim to voluntarily follow.
Justice Kagan’s response to Justice Alito’s remarks was commendable. She chose to give him the benefit of the doubt, suggesting that his comments may not have been as sweeping as his critics assumed. She acknowledged that disagreements exist among the justices on the issue of a code of conduct but maintained a collegial tone.
While there are valid separation-of-powers concerns regarding Congress’s authority to dictate the Supreme Court’s self-policing, it is plausible for Congress to require the court to police itself without specifying the rules. Justice Kagan’s suggestion that the justices adopt a code of conduct voluntarily is sensible, as it avoids the dispute over Congress’s jurisdiction. However, it will require her colleagues to possess the goodwill, self-awareness, and initiative to implement such a code.
Ultimately, the Supreme Court needs rules to prevent conflicts of interest. The source of these rules is less important than ensuring their existence. Justice Kagan’s comments contribute to the important conversation surrounding this issue and represent a step towards finding a solution.
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