When Justice Kagan addresses the Ninth Circuit judicial conference, her main goal is to provide the left with a to-do list, cutting through pleasantries and bromides. She is not one to wallow in her office; she breaks through barriers. This year, Kagan casually suggested an idea that has gained traction: Justice John Roberts could appoint a panel of “judges lower down the food chain” to review allegations of misconduct.
Right from the start, she criticized Justice Thomas and praised Justice Alito. Less than a year after the Court implemented an ethics code–a move that was part of Kagan’s earlier wish-list–Kagan is already stating that the rules are insufficient. They need to have teeth!
Here are some key points to consider. Ethics codes are not set-in-stone rules; they offer guidance to judges on how to proceed. Federal judges, including Justices, can seek informal advice from colleagues or judges from other courts. While not binding, judges typically follow precedent. Judicial ethics bodies have limited tools to enforce ethics codes, with the ability to issue private and public reprimands. In extreme cases, they can refer a judge for impeachment, which is left to Congress to act upon. The most severe consequence is preventing a judge from serving.
For example, the Federal Circuit has barred Judge Pauline Newman from hearing cases until she undergoes a health examination. Despite her legal challenge, she has not been successful in court, and her fate now rests with the D.C. Circuit. Additionally, the Federal Circuit has extended her removal for another year. Judge Newman, at 97 years old, is seemingly being pushed out by Chief Judge Kimberly Moore and her colleagues. This situation resembles a stealth impeachment, with little action taken by other federal judges. Instead, their focus is on penalizing litigants in Texas for filing cases where venue statutes permit. However, there are potential changes on the horizon from the rules committee.
Lower court judges have measures in place to enforce ethics codes. Does Justice Kagan truly want to give judges like Moore the authority to suspend Supreme Court Justices? Would she allow an inferior panel to mandate a Justice’s recusal from a specific case? Will there be rounds of litigation before these panels following a cert grant?
The Wall Street Journal editorial board raises valid concerns:
Could her panel issue subpoenas for investigations? How would it penalize Justices with life tenure? Would establishing such a system encourage frivolous complaints for partisan or PR purposes, turning the process into a form of punishment?
Once this system is in place, there will likely be an influx of frivolous complaints. Take the thousands of “orchestrated” complaints filed against Judge Aileen Cannon, prompting Chief Judge Pryor to stop accepting them. This scenario occurred with just one district court judge; imagine the potential for Justices Thomas and Alito. There is bound to be a judge who finds a complaint against a Justice valid. Who will be the first Justice subjected to treatment similar to Pauline Newman’s? Has Kagan thoroughly considered the implications of her proposal?
The issue of separation of powers must also be addressed: lower judges making judgments on top officials. This is unlikely to be accepted.
Ultimately, the calls for “judicial reform” are attempting to solve a minor issue with solutions that could harm the judiciary. Judge Jim Ho articulates this well in his recent National Review essay:
The double standards are not accidental; they are deliberate. They create a skewed incentive structure for judges: comply with critics’ demands to avoid criticism and receive praise. Failure to comply leads to ostracism.
The critics do not seek neutrality; they desire conformity. Non-compliance may result in allegations of corruption, unethical behavior, racism, sexism, or homophobia. Critics aim to pressure the Court to align with their preferences, eliminating the need to pack the Court.
While Justice Kagan may not share this perspective, her suggestions could fuel those who do.
It is regrettable that Justice Kagan has embarked on this path. With President Biden expected to announce his own Court reform soon, this issue is imminent. Once the filibuster is eliminated–as Senator Elizabeth Warren has pledged–the Court may fall under this regime. My other predictions from four years ago could come to pass.
