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,” Kagan said, explaining, “There are totally good faith disagreements or concerns.”

It is a safe bet, given recent events, that there are actually two holdouts – Justices Clarence Thomas and Samuel Alito – and that their “good faith” concerns are likely quite personal. Neither one has been scrupulous about compliance with federal ethics law, with no meaningful consequences. But a Supreme Court code of conduct would be far harder to disregard. They have the motive, means and opportunity to keep the court from adopting an ethics code.

Ironically, Kagan’s talk at Notre Dame was delivered the same day as the most recent revelation about Thomas from ProPublica, this time detailing his multiple appearances at a donors’ summit sponsored by the conservative network Stand Together and funded by the conservative billionaire Charles Koch. That was only one of Thomas’s many gifts, vacations and other benefits from wealthy Republican activists, extending over decades, none of which were disclosed on his annual financial reports.

Alito was the subject of his own ProPublica exposé, detailing an undisclosed luxury Alaska fishing trip, with private jet transportation provided by a conservative mega-donor. He has also been criticized for inappropriately giving a two-part Wall Street Journal interview to a lawyer with a pending case in the Supreme Court.

Both Thomas and Alito have flouted the disclosure provisions of the federal Ethics in Government Act, either engaging in intellectual contortions to avoid its straightforward requirements, or simply ignoring them.

Alito has gone even further, declaring in the Wall Street Journal interview — conducted in part by David Rivkin, the lead attorney in a pending Supreme Court case — that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”

Faced with Senate Democrats’ recusal request in Rivkin’s case, Alito issued a four-page denial without a single reference to the relevant federal statute, which requires disqualification in any case where a justice’s impartiality might reasonably be questioned. Rather than apply existing law, Alito substituted his “personal decision,” a new standard of his own devising, never before used by any justice, thus silently repudiating congressional authority.

Thomas is now facing a similar request, presented by 50 Democratic members of Congress, seeking his recusal in Loper Bright Enterprises v. Raimondo, a major case that could hamstring federal agencies such as the Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA). It has been a decades-long goal of Charles Koch and his late brother, David, to severely limit the power of federal agencies. The Kochs were Thomas’s hosts at the funders’ summits, and the Koch-funded network has provided the plaintiffs’ attorneys in the Loper Bright case. It remains to be seen whether Thomas will adopt Alito’s approach to recusal, making a “personal decision” rather than applying statutory law and precedent.

Just yesterday, Thomas recused himself from a case in which John Eastman sought to appeal a lower court’s order finding that his communications with then Vice President Mike Pence “more likely than not” constituted part of a criminal plan to keep former President Donald Trump in office despite the result of the 2020 election. Thomas provided no reason for his recusal and, like Alito, did not cite the federal statute.

It is one thing for Alito and Thomas to reject or disdain federal law, with the excuse that it encroaches on judicial independence. It would be an entirely different matter for any justice to dismiss a code of conduct adopted by the Supreme Court itself.

The Code of Conduct for Judges, applicable to the lower federal courts since 1973 and adopted in some version by every other U.S. jurisdiction, is the obvious model. Kagan observed that the Supreme Court could just “adapt the code of conduct,” with a few changes for “slight or certain differences” from the lower courts’ needs.

That could spell trouble for Alito and Thomas, because the Code of Conduct for United States Judges would inescapably bind them to rules they have obstinately defied.

Canon 3C requires recusal in language virtually identical to the federal statute — whenever the judge’s “impartiality might reasonably be questioned.” This would leave no leeway for Alito’s novel “personal decision” standard. Even more directly, Canon 4H(3) provides that judges must “make required financial disclosures, including disclosures of gifts and other things of value, in compliance with applicable statutes.”

It would not be surprising if Alito or Thomas have objected to the code’s provisions that track federal law.

In other words, 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.

Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Judicial Conduct and Ethics” (fifth edition) and has written many other books.