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Tuesday, October 03, 2023

Who's Keeping SCOTUS from Adopting an Ethics Code?

Justice Kagan says that the Supreme Court has been working on an ethics code, despite the concerns of one or more holdouts. My new column at The Hill explains the likelihood that Justices Alito and Thomas have been keeping SCOTUS from adopting a code of conduct.

Here is the gist:

Can Elena Kagan save the Supreme Court?

Supreme Court Justice Elena Kagan carefully chose her words when she told an audience at the Notre Dame Law School that she wanted her court to adopt a written code of ethics. That would “go far in persuading other people that we were adhering to the highest standards of conduct” she said. “I hope we can make progress.”

Kagan hesitated, however, when law school Dean Marcus Cole followed up by asking which justice was opposed to adopting a code. “What goes on in the conference room goes on in the conference room,” she demurred. “I don’t want to suggest that there’s one holdout.”

It is a safe bet, given recent events, that there are actually two holdouts – Justices Clarence Thomas and Samuel Alito. They have the motive, means and opportunity to keep the court from adopting an ethics code.

A robust Supreme Court Code of Conduct would spell the end of Alito’s and Thomas’s constant skirting of rules that apply to all other judges. That gives them a uniquely compelling reason to block approval of a code for the Supreme Court, or to hold out for the elimination of key requirements.

Ever the optimist, Kagan told the students at Notre Dame that “There are some things to be worked out. I hope that we can work them out.” I suppose she has the right to hope.

The entire column is at The Hill.

Posted by Steve Lubet on October 3, 2023 at 08:34 AM | Permalink


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