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Back in May, I noted the comically different ethical approaches taken by Justices Elena Kagan and Clarence Thomas. Kagan was concerned about receiving bagels and lox from her high school friends, while Thomas took lavish, unreported gifts from GOP billionaire Harlan Crow.
Now Kagan appears to have distinguished herself from another Republican-appointed justice on the ethics front. In remarks this week at a judicial conference in Oregon, the Barack Obama appointee made the unremarkable observation that Congress can, in fact, regulate the Supreme Court.
That stands in contrast to Justice Samuel Alito’s latest whining in the opinion pages of The Wall Street Journal, where he claimed, incorrectly: “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.” Like Thomas, Alito has been the subject of ProPublica’s investigative reporting, for not disclosing private jet travel from a billionaire who would later have business before the court (a different billionaire from Thomas’ billionaire).
Last month, the Senate Judiciary Committee approved an ethics bill on a party-line vote, with the Democratic majority pushing it through. And while Alito has puffed out his chest at the prospect of being forced to follow rules, Kagan reportedly told the judicial crowd Thursday: “It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.”
Effectively separating herself from Alito — while contending she was not rebutting him — Kagan was judiciously reluctant to spell out her views further, because the high court could someday have a case in which it is asked to assess those limits. “She also said she didn’t want to ‘jawbone it’ while Congress is considering legislation,” Politico reported.
And though the legislation that squeaked through the Judiciary Committee isn’t expected to pass the partly GOP-controlled Congress, Kagan’s comments support the uncontroversial notion that the Supreme Court isn’t immune to oversight, however much her Republican-appointed colleagues might wish that were so.
Notably, Kagan also reportedly expressed support for an ethics code, but suggested the justices aren’t coming to agreement on the matter internally.
Whatever differences of opinion the justices have, that they can’t sort it out underscores how they’re not in the best position to police themselves.