Justice Elena Kagan provided a description of the Supreme Court this week that should go without saying but, judging by recent events, needs hammering home: “We’re not imperial.” Her comments about the importance of an ethical code of conduct governing her and her colleagues are welcome — not only for their content but also for the way in which they were conveyed.
Following a series of reports on some justices’ acceptance of potentially improper gifts and favors, Justice Samuel A. Alito Jr. sat for an interview with the Wall Street Journal’s opinion section last month. He dismissed the idea that lawmakers have the right to mandate that the Supreme Court devise ethical standards by which its members must abide. “Congress did not create the Supreme Court,” he declared. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Taken literally, as a Supreme Court justice’s words should be taken, this is incorrect. Congress has some latitude to oversee the court, from determining its budget to setting the number of seats on its bench to outlining its appellate jurisdiction. And if Justice Alito’s comments are interpreted to refer only to ethics rules, the legislature arguably still has room to act. That’s where recusal and financial disclosure requirements for lower-court federal judges come from, though the justices say they follow such requirements voluntarily.
Part of what’s admirable and deft about Justice Kagan’s comments at a judicial conference in Portland, Ore., is that she chose the most charitable interpretation of Justice Alito’s remarks — saying that she wasn’t certain what he had been asked but that, in context, his response couldn’t have been as sweeping as his critics supposed. She referenced disagreements among the justices over the code-of-conduct issue, but in a collegial fashion (more collegial, indeed, than her own statements about the court a year or so ago): “It won’t be a surprise to know that the nine of us have a diversity about this and about most things. We’re nine freethinking individuals.”
This disagreement is warranted. There are real separation-of-powers questions that throw doubt on the scope of the legislature’s prerogative to tell the Supreme Court how to police itself. More plausibly within Congress’s remit is telling the Supreme Court not how it must police itself but simply that it must police itself — and then leaving it up to the justices to figure out how. Justice Kagan refused to try to settle any of these debates definitively, which was the right response considering they might someday come before the court. The Senate Judiciary Committee has advanced a bill on the subject, though the outlook for its passage looks gloomy.
The bottom line is that the Supreme Court needs rules to guard against conflicts of interest. Where they come from does not, from a practical standpoint, matter much. Justice Kagan’s preferred solution for the justices to adopt a code of conduct on their own, thereby avoiding any argument about what Congress can and can’t do, is sensible — but it will require her colleagues mustering the goodwill, self-awareness and initiative to get it done. The healthy conversation that comments such as hers promote is one step on the way there.
