Kagan argues Congress can regulate aspects of Supreme Court

Justice Elena Kagan said during a public appearance Thursday that Congress can regulate aspects of the Supreme Court, a comment that comes as Democrats push a bill that would mandate a binding code of ethics for the justices.

Kagan was asked her thoughts on the issue during an appearance at the 9th U.S. Circuit Court of Appeals Judicial Conference, less than a week after Justice Samuel Alito said in an interview with The Wall Street Journal’s opinion section that Congress lacked the authority to regulate the high court.

A member of the court’s liberal wing, Kagan declined to respond directly to her conservative colleague, indicating she had read the interview but was unsure exactly what question he was responding to.

But she went on to note that Congress funds the Supreme Court and regulates its jurisdiction.

“Can Congress do various things to regulate the Supreme Court? I think the answer is yes,” she told the crowd.

“That doesn’t say what things,” Kagan continued. “And I want to say on the other hand, can Congress do anything it wants? Well, I’m going to say no, it can’t do anything it wants. If Congress did something that effectively prevented the court from fulfilling its assigned responsibilities, I mean, that would raise some pretty serious constitutional issues.”

She declined to comment specifically on the proposal advanced by the Senate Judiciary Committee on a party-line vote last month. The bill, which has slim odds of reaching President Biden’s desk, would require the court to adopt disclosure rules for gifts, travel and income received by justices and law clerks that are as rigorous as Senate and House disclosure rules. 

Kagan said she didn’t want to weigh in on a proposal Congress was actively considering, also suggesting the Supreme Court could end up ruling on the issue in the future.

“It just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else,” she said. “We are not imperial, and we, too, are part of a checking and balancing system in various ways.”

In an interview published last week with the Wall Street Journal’s opinion section, Alito took issue with lawmakers regulating the court’s ethics.

“I know this is a controversial view, but I’m willing to say it,” Alito told the Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

The interview came as Alito and multiple other justices have come under fire for undisclosed luxury trips and ethics controversies that have fueled Democrats’ push for more stringent rules.

Kagan publicly acknowledged the justices have been discussing ethics standards at the high court but have “a variety of views.”

“We could decide to adopt a code of conduct of our own that either follows or decides in certain instances not to follow the standard code of conduct,” she said. “And that would remove this question of what can Congress do, or at least it would put it in a different light if Congress continued to act.”

Chief Justice John Roberts declined Democrats’ invitation to testify on Supreme Court ethics earlier this year, in the wake of a ProPublica report about undisclosed trips accepted by conservative Justice Clarence Thomas from a GOP megadonor.

But while accepting an award in May, Roberts said he was “committed to making certain that we as a court adhere to the highest standards of conduct,” a remark Kagan echoed Thursday.