Kagan calls for an actual ethics code

One rarely sees the emergency calls coming from within the house like this:

Justice Elena Kagan said Thursday that she would support the creation of a committee of judges to examine potential violations ofthe Supreme Court’s new ethics code, speaking out on a contentious subject as President Biden and others are increasingly calling for reform at the high court.

Kagan suggested that Chief Justice John G. Roberts Jr. could appoint an outside panel of highly respected, experienced judges to review allegations of wrongdoing by the justices, some of whomhave faced questions in recent years over unreported gifts of luxury travel, book deals and potential conflicts of interest in key cases.

Last fall, in response to criticism from Democratic lawmakers and outside experts about perceived ethics violations, Roberts announced that the court for the first time had agreed to abide by an ethics code specific to the justices. But the policy did not include a way to examine alleged misconduct, or to clear or sanction justices who might violate the rules.

Since then, a new round ofethical questions, and the court’s rulings this term, have increased calls for change.

Kagan, who was interviewed before a crowd of judges and lawyers at a judicial conference, said the code of conduct embraced by all the justices is a “good one,” but called criticism about the inability to enforce it “fair.”

“Rules usually have enforcement mechanisms attached to them, and this one, this set of rules, does not,” she said,adding that “however hard it is, we could and should try to figure out some mechanism for doing this.”

The fact that this is coming from Kagan — who used to fancy herself the strategist who could bring Republicans on board for key boats — is particularly striking.

It doesn’t mean much unless a Democratic president ever gets the chance to replace a Republican justice, but I suspect that Trump v. US will be breaking point for some parts of the liberal legal world who still think that the institutional power of the Supreme Court is a net positive. Roberts just going full Alito in a case of that magnitude is hard for even a pretty determined institutionalist to ignore.