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Jimmy Williams
Justice Elena Kagan has become the first member of the U.S. Supreme Court to publicly call for strengthening the court’s new ethics code by adding an enforcement mechanism.
In her remarks at the annual judicial conference held by the 9th Circuit, attended by over 150 judges, attorneys, and court personnel, Kagan stressed the importance of not just having good rules, but also having a way to enforce them.
“The thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this one — this set of rules — does not,” Kagan said. She suggested that Chief Justice John Roberts could appoint a committee of respected judges to handle enforcement. This proposal addresses the concern of who should enforce the ethics code and what actions should be taken if the rules are violated.
The call for an enforceable ethics code has gained traction among Democrats, including President Joe Biden, who have discussed broader Supreme Court reforms such as term limits. The push for a code took on greater urgency following investigative reports last year. ProPublica revealed that Justice Clarence Thomas did not disclose luxury trips from a major Republican donor, and similar reports emerged about Justice Samuel Alito’s undisclosed trip to Alaska. Additionally, Alito faced criticism after an upside-down American flag was displayed outside his home, a symbol linked to former President Donald Trump’s false election fraud claims. Alito denied involvement in the flag incident.
Public confidence in the Supreme Court has significantly declined in recent years. A survey by The Associated Press-NORC Center for Public Affairs Research in June found that 4 in 10 U.S. adults have little to no confidence in the justices, with 70% believing they are guided more by personal ideology than neutral arbitration.
Kagan, who has served on the court since her 2010 nomination by then-President Barack Obama, argued that an enforceable ethics code would protect justices from wrongful accusations of misconduct while holding those who violate the rules accountable. “Both in terms of enforcing the rules against people who have violated them but also in protecting people who haven’t violated them — I think a system like that would make sense,” she said.
This term, the Supreme Court tackled numerous contentious issues, including homelessness, abortion access, and presidential immunity. Kagan was in the minority opposing decisions that favored state enforcement of homeless encampment bans and broad immunity for former presidents from criminal prosecution for official acts. However, she joined her colleagues in preserving access to the abortion medication mifepristone.
Justice Kagan has previously warned that the court risks losing public trust, particularly following the controversial 2022 decision to overturn Roe v. Wade. She emphasized that judicial legitimacy could be compromised if the court is perceived as an extension of the political process or as imposing personal preferences.
