Justice Elena Kagan did not write many opinions this term—eleven total including her concurrences and dissents—but she had quite a bit to say in remarks to the Ninth CIrcuit Judicial Conference earlier today, including how she handles her frustration with decisions that don’t go her way.
Earlier this year, Justice Sotomayor acknowledged occasionally crying over decisions behind closed doors, Kagan confessed to a different response: “I get where the frustration comes from. I’m more of a wall-slammer.”
The most headline-grabbing aspects of Justice Kagan’s remarks concern the potential of an enforceable ethics code for the Supreme Court. From Politico‘s report,
“The thing that can be criticized is: Rules usually have enforcement mechanisms attached to them, and this set of rules does not,” Kagan told a meeting of federal judges and lawyers.
Kagan said she welcomed the code the court announced last November but that the absence of any means of enforcing it was a glaring omission.
“It’s a hard thing to do to figure out who exactly should be doing this and what kinds of sanctions would be appropriate for violations of the rules, but I feel as though we, however hard it is, that we could and should try to figure out some mechanism for doing this,” . . .
“I think it would be quite bad … for us to do it to each other,” she told the Ninth Circuit Judicial Conference.
One alternative she suggested was some sort of committee of lower court judges who could consider ethics complaints against sitting justices. She also suggested that creating such an enforcement mechanism could benefit justices falsely accused of unethical conduct.
“It would provide a sort of safe harbor. … Sometimes people accuse us of misconduct where we haven’t engaged in misconduct. And, so, I think 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.
Justice Kagan also expressed concern about the proliferation of concurrences that attempt to spin or reframe majority opinions (something Justice Kagan did very little of this term, authoring only two concurrences).
“Everybody sort of tries to spin it one way or another,” Kagan said. “Often people use separate opinions to pre-decide issues that aren’t properly before the court and that may come before the court in a year or two and try to give signals as to how lower courts should decide that, which I don’t think is right.” . . .
“I don’t know how lower courts are supposed to deal with it really. Mostly, I think they should deal with it by ignoring it, basically,” she said.
