Justice Elena Kagan hasn’t written many opinions this term — 11 in total, including her concurrences and dissents — but her remarks to the Ninth Judicial Circuit earlier today has a lot to say, including how she handles situations where she feels frustrated by decisions that don’t go as well as they should.
Earlier this year, Justice Sotomayor admitted to occasionally crying over closed-door decisions, and Kagan admitted to having mixed reactions: “I understand where the frustration comes from. I’m more of a wall-breaker.”
The most striking aspect of Justice Kagan’s remarks concerns the potential for an enforceable ethics rule on the Supreme Court. from PoliticoReport,
“It’s a criticism that rules usually come with enforcement mechanisms, but this set of rules does not,” Kagan told a conference of federal judges and attorneys.
Kagan said she welcomed the guidelines announced by the court in November but said the lack of any enforcement means was a clear oversight.
“It’s a difficult thing to figure out exactly who should be doing this and what the sanctions are for breaking the rules, but I feel like, no matter how difficult it is, we can and should try to figure out some mechanisms to do that,” . . .
“I think it would be really bad if we did this to each other,” she told the 9th Judicial Circuit.
Another option she suggested would be to create some kind of committee of lower court judges who could consider ethics complaints against sitting judges. She also suggested that establishing such an enforcement mechanism could benefit judges wrongfully accused of unethical conduct.
“It would provide a safe harbor…sometimes people accuse us of inappropriate behavior that we were not involved in. So I think it would be a good idea to both enforce the rules against people who break them and to protect people who don’t break them.” For people who have these regulations, I think a system like this makes sense,” she said.
Justice Kagan also expressed concern about the proliferation of concurring opinions that seek to distort or reframe the majority opinion (something Justice Kagan has rarely done this semester, writing only two concurring opinions).
“Everyone is trying to explain it one way or another,” Kagan said. “People often use dissenting opinions to pre-determine issues that have not been properly brought before the court and that may come before the court within a year or two and try to give a signal as to how the lower courts should decide, but I don’t think that’s right.” . . .
“I don’t know how the lower courts should handle this issue. For the most part, I think they should handle it by basically ignoring it,” she said.
