Justice Elena Kagan discussed emergency dockets and the number of women who have been on the Supreme Court in the past.
Justice Elena Kagan dismissed concerns on Monday about lower-court judges’ ability to enforce the Supreme Court’s new ethics rules. She said federal judges are more than able to hold justices accountable.
Kagan stated, “I think judges aren’t so afraid of us.” “I believe there are many judges in this country who can do that task in a fair-minded, serious manner.”
Kagan expanded on her suggestion that Chief Justice John G. Roberts Jr. nominate an outside panel of experienced judges to review accusations of wrongdoing, or questions regarding recusal decisions made by the justices. Some of them have been questioned in recent years about unreported gifts and luxury travels as well as potential conflicts of interests in key cases.
Last fall, the court adopted for the first-time a code specific to its nine justices. The policy was criticized because it did not provide a means to investigate alleged misconduct or review whether justices had recused themselves as necessary.
Kagan, who is also the co-host of the liberal podcast “Strict Scrutiny” about the Supreme Court, said that an oversight committee comprised of lower-court judges with a high level of respect “seems to be a good thing for me as far as ensuring we adhere to our code of ethics going forward.”
The discussion focused on the number of women who have served on the Supreme Court, the collegiality of the justices, and the increasing number of emergency actions that require the justices resolve complex issues quickly — at least temporarily — by resolving them without oral argument.
Kagan and her female colleagues, Justices Sonia Sotomayor and Amy Coney Barrett as well as Ketanji brown Jackson have made themselves heard on a court that has been dominated by males for centuries. She said that the four women speak more during oral arguments than the five male judges.
Kagan stated that women’s opinions can be very different. It’s not about the outcome. It’s about what messages you send to the society about women’s role in society and how they can be at the top levels.
Kagan, when asked about the decrease in cases on the Supreme Court docket over the past decade, noted that in contrast the court had been inundated by emergency requests from both the federal government as well as state attorneys general. She said that the Supreme Court should not take up cases before they have been fully briefed and the appeals court has ruled.
She said that there are times when the court must intervene quickly if the majority believes that a ruling of a lower court is so out-of-step or causes such widespread harm that they can’t wait for years to have a case make its way up to the Supreme Court. Kagan, on the other hand said: “I don’t think we do our work this way.”
Kagan is among three nominees by a Democratic President to a bench that boasts a supermajority of conservative judges who have rapidly moved the law right. Kagan lost several high-profile lawsuits during the July term. Most notably, the majority gave Donald Trump immunity for his actions as White House official. Kagan was the author of the dissent in a case where the majority overturned 40-year-old precedents to limit the ability of federal agencies and government to regulate important areas of American society.
Next month, the justices will be beginning a new term of contentious debate. The justices are preparing for another contentious term that will begin next month. The justices will almost certainly be asked to settle election-related disputes involving the presidential race between Trump and Kamala Harris.
Public confidence in the Supreme Court is at an all-time low. According to a June Associated Press/NORC poll, seven in ten Americans believe that the justices base their decisions on their personal ideologies rather than acting as an independent check against the government.
The court is under scrutiny. Some justices are being questioned about their conduct off the bench. Clarence Thomas, Samuel A. Alito Jr. and others refused to recuse themselves in the Trump case. They cited perceived conflicts of interest with their wives’ political activities.
Joe Biden, the president of the United States, has proposed major changes to the Supreme Court, including a term limit for justices of 18 years and an ethics code that is binding and enforceable.
Jackson said that she would support any type of enforcement mechanism. Kagan called in July for a panel of judges to enforce an ethics code.
Kagan had to respond on Monday to criticisms of her proposed enforcement mechanisms, including those of Kelly Shackelford of influential Christian conservative legal group First Liberty. Shackelford, according to ProPublica, described Kagan’s proposal as “somewhat disloyal”, “treasonous”, and that it would “destroy” the independence of judiciary.
Kagan stressed on Monday that her reference was to the steps that could be taken by the court to ensure its own rules are enforced. She said she has great faith in the chief justice to be able to appoint an independent commission of judges as he must address past issues. Kagan stated that she would not comment on any legislation Congress may try to impose upon the court, as such a proposal might end up in litigation at the Supreme Court.
Kagan joked about Shackelford’s description, saying that it was like saying that someone is “somewhat” pregnant. He added: “I don’t think I want to dignify this any further.”
Hiram Sasser, First Liberty’s Executive General Counsel, told The Washington Post that Shackelford sent Kagan a letter dated September 9 to apologize for her use of an inappropriate term. He also said he thought she was inviting the other branches to take control of the court.
Source: https://www.washingtonpost.com/politics/2024/09/09/supreme-court-kagan-melissa-murray/