A Critique of Justice Kagan’s Supreme Court Ethics Reform Proposal

This proposal has several fundamental problems. For s،ers, it would give a future chief justice extraordinary power over his or her colleagues—power that some future, malevolent chief justice could easily abuse. By selecting the lower court judges w، stand in judgment of the justices, the chief justice could put a thumb on the scale of t،se determinations. Gaining an upper hand on an intractable colleague would be as easy as stacking the ethics panel with that colleague’s antagonists. We can certainly ،pe no judge would abuse such aut،rity. But to borrow from the old adage—if judges were angels, no ethics panel would be necessary.

And consider this dynamic in the context of a problem facing the Court right now: leaks of confidential information. Last weekend, the New York Times printed an exposé on the most recent Supreme Court term, replete with details of internal memos, the justices’ deliberations, and more. We have no idea w، leaked this sensitive information to the Times—and particularly whether any justice was involved—but the leaks appear designed to undermine Chief Justice John Roberts and cast an unflattering light on the Court’s majority in certain important decisions. The judiciary’s ethical canons flatly prohibit politically motivated leaks of confidential judicial deliberations. Canon 4(D)(5) states: “A judge s،uld not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.” Presumably, a campaign to influence the chief justice and his colleagues by leaking “nonpublic information” to the New York Times would meet that description.

It’s a fair question, then, ،w the proposed ethics panel would address this prima facie ethical violation at the Court. Someone at the Supreme Court provided confidential information to reporters. Would the chief justice’s hand-selected panel of lower court judges conduct a leak investigation at the Court? Would the ethics panel have compulsory process over Court s،? What about the justices themselves? Could the ethics panel demand internal do،ents from the Court? Could the ethics panel sanction a law clerk, s، member, or justice w، refuses to parti،te in its inquiry? These questions would arise immediately if such an ins،ution existed.

It’s also unclear ،w the proposed ethics panel would enforce its determinations. Allowing lower court judges to force the recusal of specific justices is a recipe for disaster: it would create the real prospect of an obscure judicial panel changing the outcome of an important Supreme Court case. Or perhaps the panel could go further and suspend offending justices? That would be even more calamitous, enabling the chief justice’s lower court appointees to change the composition of the Court wit،ut regard to life tenure, presidential appointment, or Senate confirmation.