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There is a very important voice calling for change at the U.S. Supreme Court, and everyone should be listening to them. No, it’s not President Joe Biden.
While Biden’s call for a mandatory code of ethics for Supreme Court justices is on the mark, his broader push for court reform is misguided. Even if successful, a likely partisan push by the White House and lawmakers to enact term limits for justices and potentially restrict the number of justices a single president is able to appoint could further inflame public opinion about the court. Politicizing court reform, even in an attempt to address some very real problems, might counterproductively further erode already low trust in the court.
If the court is going to rebuild trust in its rulings and improve its standing with the country it serves — all Americans, not just those belonging to one political party or another — it would be best for the reform to come from within the court. That is why everyone should be paying attention to recent comments from Justice Elena Kagan.
Kagan, one of three liberal judges, and the rest of the court took a modest step forward last year by instituting a specific code of ethics for themselves, but they notably failed to include a way of enforcing that code. Kagan has now offered public, and meaningful, support for such an enforcement mechanism.
“The thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this one — this set of rules — does not,” Kagan said at a recent judicial conference. Kagan has suggested that Chief Justice John Roberts create a committee of other respected judges to enforce the existing rules.
It is too bad that the justices did not already include this type of enforcement model when they created the long-overdue ethics code. If they want to prove they are serious about holding themselves accountable, and want to blunt the swelling public pressure, they should quickly recognize the strength and necessity of Kagan’s proposal.
The onus falls particularly hard on Roberts, who must not continue to allow the court’s public standing to slip in pursuit of unanimity among the nine justices. Very real concerns about conflicts of interest, particularly exemplified but not limited to the actions of Justices Samuel Alito and Clarence Thomas, have damaged Americans’ faith in the court and its decisions. Some of the justices may never agree to stronger ethics enforcement, and Roberts must not allow a lack of unanimity to impede the additional and needed ethics reform.
Biden has also proposed 18-year term limits for justices, and a constitutional amendment to address the concerning July 1 Supreme Court ruling asserting broad immunity for presidents in their “official” capacity. We too have concerns about that ruling and its impacts, and about the age of government officials not reflecting the people they serve. But we still find Biden’s court reform push to be potentially counterproductive. Supreme Court reform should focus on the lingering ethics shortcomings, and, to be more broadly credible, it should come from within the court.
We cannot say it enough: The highest court in the land should have the highest ethics standards in the land (the same goes for the legislative and executive branches). Biden is not wrong that this code should be mandatory for justices, but he is the wrong messenger. Kagan’s perspective should carry significant weight, both with the American public and with her colleagues on the Supreme Court.
