Justice Kagen admits fellow Supreme Court jurists unable to reach consensus on self-imposed ethics standards

 August 5, 2023

Congressional Democrats, in clear coordination with partisan media outlets, are pushing legislation to impose strict ethics standards and disclosure requirements on the Supreme Court, a separate but co-equal branch of the government over which Congress has little, if any, real control.

Amid the constant drumbeat, the high court has reportedly been considering its own beefed-up ethics and disclosure requirements, but according to Justice Elena Kagen, agreement in that regard has been difficult to achieve among all members on the bench, The Washington Post reported.

That revelation came Thursday during remarks that the liberal jurist delivered at a judicial conference in Portland, Oregon.

Kagen says justices can't agree on self-imposed ethical standards

"It’s not a secret for me to say, we’ve been discussing this issue, and it won’t be a surprise to know that the nine of us have a variety of views about this -- and about most things," Justice Kagen said in reference to the Supreme Court's ongoing internal debate over ethical standards and financial disclosure requirements.

That debate began months ago, if not earlier, under Chief Justice John Roberts as an effort to guard against congressional talk of imposing their own legislative branch standards on the judiciary branch that coincided with a series of media articles that purportedly exposed unreported free gifts and trips received by Republican-appointed justices in years past.

"It’s a hard thing to figure out exactly how we’re alike and how we’re different from other judges -- and it’s hard to get as much consensus as we can in the way that we like to do," Kagen continued. "But I hope that we will make some progress in the area of the kind that the chief justice talked about and maybe put the question of, 'what can Congress do and not do,' maybe take that out of play."

Alito says Congress has no authority to "regulate the Supreme Court -- period."

What Justice Kagen was obliquely referencing there with her "what can Congress do and not do" quip was a more direct assertion from Justice Samuel Alito in a recent interview with the Wall Street Journal that Congress had no constitutional authority to impose its will on the Supreme Court.

In response to legislation proposed by Senate Democrats to regulate justices and their clerks with standards "at least as rigorous as the House and Senate disclosure rules," Alito observed that "Congress did not create the Supreme Court," but rather the Constitution itself did.

"I know this is a controversial view, but I’m willing to say it," he said. "No provision in the Constitution gives them the authority to regulate the Supreme Court -- period."

As to whether the other justices on the bench agreed with that assertion, Alito acknowledged, "I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about."

Senate Democrats demand Alito's recusal

The Post reported that Justice Kagen said during the judicial conference that Congress has limited authority over the Supreme Court in terms of the court's budget, jurisdiction, and structure, but declined to specifically criticize the Democratic legislation currently under consideration due to the possibility that it may one day come before the court for the justices to rule on.

In that regard, the outlet noted that Senate Judiciary Committee Chairman Richard Durbin (D-IL) recently sent a letter to Chief Justice Roberts to decry Justice Alito's remarks in the recent interview and demand that he be forced to recuse himself from any future case in reference to the aforementioned legislation.

"By opining on the constitutionality of legislation under consideration by the U.S. Senate and agreeing to sit for interviews conducted in part by an attorney with a case currently pending before the Court, Justice Alito violated a key tenet of the Statement on Ethics Principles and Practices … to which all Supreme Court Justices purport to subscribe as well as the Code of Conduct for U.S. Judges," Durbin wrote.

However, as the Post acknowledged, and undoubtedly much to the dismay of Senate Democrats like Durbin, Roberts himself lacks the authority to force any other justice to recuse themself from any case, and the futile demands that he do so are little more than a temper tantrum by Democrats against a co-equal branch that they have no right to impose their will upon.

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