Washington — Supreme Court Justice Elena Kagan suggested Thursday that Congress has the authority to regulate the nation’s highest court, but acknowledged there are limits to lawmakers’ power to impose rules on the institution.
Kagan’s remarks came during an appearance at the Ninth Circuit Judicial Conference in Portland, Oregon, where she was asked about Justice Samuel Alito’s recent assertion that Congress does not have the authority under the separation of powers to impose ethics rules on the justices.
“Our whole system is one of checks and balances, and usually when the court talks about that, we’re talking about other actors and the way they check and balance each other or the way we check and balance them,” Kagan said. “But it just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else. We’re not imperial and we too are a part of a checking and balancing system in various ways.”
The justice, appointed to the Supreme Court by President Barack Obama in 2010, noted that Congress funds the Supreme Court and has in the past changed its structure, composition and appellate jurisdiction.
“Can Congress do various things to regulate the Supreme Court? I think the answer is yes,” Kagan said, though she later added that Congress does not have unfettered power over the high court. “There are limits here, no doubt.”
Kagan was careful with her comments and acknowledged that questions about the constitutionality of legislation policing the Supreme Court could be considered by the justices in the future.
“Congress, when it decides whether to pass legislation, ought to and hopefully usually does consider the constitutionality of its own actions, and it’s entitled to do that, I think, and I wouldn’t want to jawbone it while it’s doing that,” the justice said.
She also highlighted Chief Justice John Roberts’ comments in May recognizing there is more the court can do to “adhere to the highest standards” of ethical conduct.
“I hope that we will make some progress in this area of the kind that the chief justice talked about and maybe put the question of what can Congress do or what can Congress not do, maybe take that out of play,” Kagan said.
Questions about the ethics standards the justices adhere to arose after Justice Clarence Thomas’ decades-long friendship with Republican megadonor Harlan Crow was at the center of several reports from the news organization ProPublica. The outlet revealed that Thomas accepted luxury vacations and travel arrangements from Crow, who also purchased three properties from Thomas and his family for more than $133,000 in 2014.
ProPublica also found that Alito flew aboard a private jet provided by a Republican hedge fund billionaire to Alaska for a luxury fishing trip in 2008.
The revelations fueled calls for the Supreme Court to adopt a binding code of conduct, or have Congress step in and take legislative action.
Kagan expressed support for the court acting itself to adopt formal ethics rules and said such action would eliminate the question of whether Congress could impose an ethics code on the Supreme Court.
“It’s not a secret for me to say that we have been discussing this issue,” she said. “And it won’t be a surprise to know that the nine of us have a variety of views about this, as about most things. We’ve nine free-thinking individuals.”
While the justices are weighing whether to adopt ethics rules for themselves, the Senate Judiciary Committee advanced along party lines last month legislation that would require the Supreme Court to adopt an ethics code. The proposal, though, is unlikely to pass the Senate, given the opposition it faces from Republicans.
Democrats on the Judiciary panel also called on Roberts on Thursday to ensure Alito recuses himself from any future cases concerning legislation that regulates the Supreme Court, citing his comments to the Wall Street Journal last month.
“I know this is a controversial view, but I’m willing to say it,” Alito said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
The committee’s Democrats told Roberts that with his comments, Alito violated a tenet of a “Statement on Ethics Principles and Practices” signed by all nine justices and provided by the chief justice to the Judiciary panel in April.
“While this view is plainly incorrect, we are even more concerned that Justice Alito has publicly prejudged a matter that could come before the Court in the future,” they wrote.
The Senate Democrats said that by publicly remarking on the constitutionality of pending legislation, Alito’s comments “unquestionably engender doubt that he could fairly discharge his duties should this question come before the Court.”
“The Court is mired in an ethical crisis of its own making, yet its only response has been a weak statement on ethics that Justice Alito has apparently ignored,” they said. “It is unacceptable for the highest court in the land to have the lowest ethical standards, and because the Court has abdicated its responsibility to establish its own standards, Congress must act.”
