Justice Elena Kagan hasn’t written many opinions this term — 11 in total, including concurring and dissenting opinions — but she had quite a lot to say in her remarks to the 9th Circuit Judicial Conference earlier today, including how she deals with frustration when decisions don’t go her way.
While Justice Sotomayor acknowledged earlier this year that she is sometimes moved to tears by closed-door decisions, Justice Kagan confessed to a different reaction: “I understand where the frustration comes from. I’m more of a throw-your-head-in-the-wall type.”
Justice Kagan’s most notable comments concerned the possibility of establishing an enforceable code of ethics for the Supreme Court. POLITICOReport,
“The criticism is that regulations usually come with enforcement mechanisms, and this rule does not,” Kagan said at a meeting of federal judges and lawyers.
Kagan welcomed the move. The court announced the rules in November last year. However, the fact that there was absolutely no way to enforce it was a clear flaw.
“It’s difficult to determine who should do this and what sanctions are appropriate for breaking the rules, but I feel that we can and should come up with some mechanism for doing this, no matter how difficult it may be.”
“I think it’s pretty bad that we do that to each other,” she told the 9th Circuit Judicial Conference.
One alternative she proposed would be to set up some sort of commission of lower court judges that could hear ethics complaints against sitting judges, and she suggested creating such an enforcement mechanism could benefit judges who are unfairly accused of unethical behavior.
“It would be a kind of safe harbor. … Sometimes we get accused of wrongdoing when we haven’t. So I think a system like that makes sense both in terms of enforcing the rules against those who have broken the rules and also in terms of protecting those who haven’t broken the rules,” she said.
Justice Kagan also expressed concern about the increasing number of concurring opinions that seek to distort or reframe majority opinions (something she has done sparingly this term, writing only two concurring opinions).
“Everybody is trying to interpret this case in one way or another,” Kagan said. “On issues that haven’t been formally heard by the Court, that may be heard in a year or two, people often try to prejudge with separate opinions and send a signal about how lower courts should decide, and I don’t think that’s right.”
“I’m not sure how the lower courts should handle this issue. I think they should basically just ignore it and deal with it,” she said.
