Alito and Kagan Justices Elena Kagan, left, and Samuel Alito Jr., right, arrive Thursday to testify in the U.S. House about the U.S. Supreme Court’s budget. Credit: Diego M. Radzinschi/ NLJ

Chief Justice John Roberts Jr. is considering whether the U.S. Supreme Court should have its own code of conduct, Justice Elena Kagan revealed on Thursday.

Speaking at a rare congressional hearing called primarily to review the court’s budget, Kagan and Justice Samuel Alito Jr. were pressed to explain why the justices—unlike judges on the lower federal courts—are not required to abide by an ethics code.

Both justices said that court members take ethical concerns very seriously. But Alito said the Constitution established the Supreme Court as unique, making it improper for the justices to be governed by the same code that binds lower court judges.

Rep. Norma Torres, D-California, raised the issue in the context of the #MeToo movement and the treatment of women, though no mention was made of charges of sexual misconduct leveled at Justice Brett Kavanaugh during his confirmation hearing last year.

Torres asked how anyone would know, without having an inspector general monitoring the court, whether misconduct was taking place at the Supreme Court.

Alito responded, “I am not aware of any particular problems” at the Supreme Court, but assured Torres that if misconduct did occur, “we would not sit back, we would take action.”

At that point, Kagan stated, “There are pros and cons, I am sure,” to creating an ethics code specifically for the Supreme Court. But she added that the chief justice is “very serious” in deliberating about the idea. Kagan said the full court has not discussed the issue together at its private conferences.

➤➤  At another point in the hearing, Rep. Sanford Bishop, D-Georgia, asked the perennial question about the dearth of minorities in the ranks of Supreme Court law clerks. Citing a 2017 National Law Journal study, Bishop expressed concern about the low numbers not only because the justices are deprived of the benefits of diversity, but also because law clerks tend to land on “the fast track” toward prominent positions in the law and academia, leaving qualified minorities behind.

Kagan said this problem, too, is being taken “very seriously by the court as a whole.” Recalling her own time as a law clerk in 1987 and 1988, Kagan said, “I think we are doing better” now, noting that for the first time ever, more than half of this term’s law clerks are female.

Of the 36 law clerks hired by the nine sitting justices, 19 are female—thanks, in part, to Kavanaugh hiring four female law clerks, a first at the court. Tobi Young, one of this term’s female clerks hired by Justice Neil Gorsuch, is the first known registered Native American law clerk in the court’s history.

Referring to herself and her colleagues, Kagan also said, “It is important for us to use whatever bully pulpit we have” to promote recruiting more minorities for the Supreme Court. One of the findings of The National Law Journal’s 2017 report was that most justices were relying on old methods for hiring clerks and not reaching out to minority law students and lawyers.

The public budget hearing Thursday was the first since 2015. Rep. Mike Quigley, D-Illinois, who now chairs the subcommittee that oversees the Supreme Court’s budget, said he was resuming the practice in part to advance greater transparency by the Supreme Court to help the public understand what the justices do.

➤➤  Before asking any questions about the budget, Quigley dove right into the debate over allowing cameras to broadcast court proceedings. “It is time we should use every tool necessary” to promote understanding, he said.

“All of my colleagues share your interest,” Alito said. He added: “Most people think that our arguments should be televised. Most of the members of my family think that arguments should be televised. I used to think they should be televised.”

But Alito said once he joined the court in 2006, he changed his mind. “I wasn’t indoctrinated or pressured,” he said, but decided that cameras would undermine the value and purpose of oral arguments by influencing how lawyers and justices behave.

Kagan offered similar thoughts. Camera access would probably have a positive impact in showing to the public “an institution at work,” but she too thought it might damage the dynamics or oral argument. She said the full court had not discussed the cameras issue since she joined the court in 2010.


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