Supreme Court Justice Elena Kagan on Thursday said the high court is “not imperial,” apparently distancing herself from the view that Congress has no business in establishing ethics rules for justices.
Justice Samuel Alito last month told The Wall Street Journal that “no provision in the Constitution gives them the authority to regulate the Supreme Court — period,” referring to Congress. The comments came after several ethical controversies over his decision to accept a lavish trip and private jet travel without disclosing it.
While Kagan emphasized her remarks were not meant as a rebuttal of Alito’s comments, she noted there are a number of actions that Congress could take to police justices, citing for instance that Congress is responsible for funding the court.
“It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else,” she told a panel at the 9th Circuit Judicial Conference in Portland, according to Politico. “We’re not imperial.”
Claire Rush via Associated Press
While Kagan declined to elaborate further in the event that she and the remaining eight justices would eventually have to take up a case assessing limits on their conduct, she said she would be in favor of the court establishing an ethics code for itself.
“We could decide to adopt a code of conduct of our own that either follows or decides in certain instances not to follow the standard codes of conduct … that would remove this question of what Congress can do,” she said.
But she noted that not all members of the court see eye to eye on the issue.
“We’re nine freethinking individuals,” Kagan said.
This comes as a group of 10 Senate Democrats on Thursday urged Chief Justice John Roberts to ensure Alito recuses himself from cases involving regulation of the high court, citing his recent comments opposing oversight for justices.
Alito has come under fire for penning an op-ed piece as a rebuttal to a ProPublica report before it was published. The ProPublica article detailed a luxury trip Alito took in 2008 arranged by a prominent conservative figure who was then head of the Federalist Society.
But Roberts has also opposed calls for more oversight for the court.
While the Senate Judiciary Committee has already approved legislation putting in place strong ethics standards for the high court, the bill is unlikely to pass given Republican opposition.
Alito is not the only justice facing scrutiny over their conduct. ProPublica also revealed Justice Clarence Thomas received lavish gifts and participated in a real estate deal with conservative donor Harlan Crow without disclosing it.
The Associated Press reported that Justice Sonia Sotomayor’s staff has pushed for sales of her books during several college visits.